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But a long-pending test of mandatory death penalty laws, and the applicability of federal wage and hour legislation to local government workers are among the serious questions that have been pushed aside for the moment because of Douglas' condition. "These matters can be put off for six months without any problem," says a lawyer who often argues before the court. "But if important questions of national policy, and conflicts between circuit courts of appeal are not even considered, let alone decided, for a year or more, then we're heading for trouble."
The specter most disturbing to many is that Douglas will not only remain disabled but also refuse to retire until after the 1976 presidential election in hopes that Gerald Ford will not be elected. The court's longest-sitting Justice—36 years—could have both a personal and philosophical motivation for putting off retirement. He was once the target of an impeachment effort led by Ford, and with four Nixon appointees already on the court, the liberal Douglas may believe a Ford nominee would solidify a conservative majority for years to come.
But such a staying game would almost surely set off a political uproar, much as did Earl Warren's abortive effort to resign before Richard Nixon took office. "With these politicians looking for issues, it could become a maelstrom," says one court hand. "I'm dreading it.
I'm dreading it in the worst way."