A Constitutional Regency
posted by Gerard Magliocca
On Sunday, Justice Ginsburg told people for the 23rd time that she’s not retiring anytime soon. Perhaps the press will now start hounding Justice Breyer with these sorts of questions between now and 2015.
This raises a larger point that I’m thinking about as part of the article that I’m writing. We could be stuck with a disconnect between the political branches (or, at least, the Presidency) and the Court for a long time. Even assuming that Democrats hold the White House in 2016 (a not trivial assumption), there is nothing sure about any retirements from the conservative side of the Court in this decade. To serve until 2021, Justices Scalia and Kennedy would need to stay until they are 85. That is hardly unthinkable. The “Constitution in 2020,” to use that liberal slogan, could end up looking a whole lot like the “Constitution of 2010.”
In monarchies, a regency referred to a period where the king (or queen) was a child, and someone else had to govern until they came of age. This was always an uncertain time, because nobody knew whether the regent’s policies would be followed when the king (or queen) took over. I’m kind of wondering if this is the legal equivalent, at least when the Court is closely divided.