The great court shuffle that may not come

Nothing concentrates Washington minds quite like speculation about an imminent departure from the US Supreme Court.

And for good reason. Not since 1823 has the same lineup of justices presided for so long - almost nine years. In a way, the well-defined divisions and alliances among the current nine justices provide a predictability often lacking in the other branches of government.

But alter that balance of power by one or two votes, and watch out. Some of the nation's most contentious issues - including abortion, the church-state divide, civil liberties, and states' rights - could be at a tipping point.

With the nation as politically divided as the justices, liberals and conservatives see both the court and country at a crossroads. And they're gearing up for a fight.

But a funny thing happened on the way to World War III. It looks increasingly unlikely that any justice will soon leave, analysts say.

Some court watchers have long suggested it was a near certainty that Chief Justice William Rehnquist and perhaps Justice Sandra Day O'Connor would announce their retirements by late June. But other legal scholars have been just as sure that the justices are staying put. That view has gained momentum among court watchers in recent weeks.

"There is not going to be a retirement," says David Garrow, a legal historian at Emory University in Atlanta and longtime court watcher. He offers three reasons.

Mr. Garrow says a retirement announcement would have come sooner, in early May, to give the White House more time to fill the vacancy before the court's next term begins in October.

Second, he says, there have been no private hints from any of the justices that they might be stepping down.

And third, Garrow says, a retirement now would leave the court at a potential 4-4 deadlock in September, when the justices take up a crucial debate over the constitutionality of the McCain-Feingold campaign-finance law.

Other analysts point to reports that the chief justice has rehired his administrative assistant for another year and arranged for a new crop of law clerks.

Speculation over a possible retirement by Chief Justice Rehnquist or Justice O'Connor was sparked in large part by a historic truism at the high court. Retiring justices prefer to be replaced by someone with a similar judicial outlook. For lifelong Republicans like Rehnquist and O'Connor, that means retiring during a Republican administration.

The speculation was further fueled by the fact that the Republicans hold a 51-member majority in the 100-seat Senate, an advantage that could help speed a nomination out of the Judiciary Committee and onto the Senate floor.

But Senate Democrats are using filibusters to delay indefinitely some of the White House's appeals-court nominees. The Democrats would likely do the same to any high-court nominee they deem too conservative.

The willingness to resort to filibusters - which require 60 votes to end - is changing the dynamics of the judicial-nomination process in a fundamental way, legal analysts say. Senate Democrats have vowed to use a filibuster to prevent a floor vote if President Bush attempts to fulfill his campaign promise to appoint Supreme Court justices in the mold of conservatives Antonin Scalia and Clarence Thomas.

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