As the U. S. Supreme Court approaches adjournment in a few weeks, speculation will inevitably arise about whether and which justices might be retiring—and about the candidates President Reagan might nominate to succeed them. Should one or more of the justices now on the bench decide to step down and should Reagan pick a candidate or candidates of a conservative cast, the cry will then arise that he is "packing the court." Yet, as David M. O'brien points out, this is not only the president's prerogative; it is also a precedent dating back to the earliest days of the Republic. Equally true, too, as Mr. O'brien observes, while much is made about merit, "the reality is that every appointment is political." What no president can foresee, however, is the legal course his candidate will chart once approved by the Senate and ascended to the high court. The most notable example of a justice veering in the way least expected by the president who chose him is, of course, that of Chief Justice Earl Warren. But history abounds with other such instances, and the future is not likely to break abruptly with the past. The maxim would appear to be that the president does the picking, but ultimately each justice becomes his—or in the case of Justice O'Connor, her—own man.

Mr. O'brien's essay on the politics of court packing is excerpted from a book he has written about the marble palace on Capitol Hill. Entitled Storm Center: The Supreme Court in American Politics, the book will be published by W.W. Norton later this spring. An authority on constitutional law and the judicial process, Mr. O'brien received his B.A., M.A., and Ph.D. degrees from the University of California at Santa Barbara. He has served as both a research associate and a judicial fellow in the office of the administrative assistant to the Chief Justice of the Supreme Court. Mr. O'brien, an associate professor of government at the University of Virginia, is also the author of The Public's Right to Know: The Supreme Court and the First Amendment, which was selected as one of the "outstanding books in political science" for 1981 by Choice magazine. He was co-editor with Mark Cannon of Views from the Bench: The Judiciary and Constitutional Politics published last year.