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Justice Stevens Still Going Strong.--

In a follow-up to the work I've co-authored on Term Limits for Supreme Court Justices, I've been looking at the effects of any US Supreme Court retirements on the overall age and tenure distribution on the Supreme Court.

Many people assume that, if a Democrat wins the White House in 2008, there might be one or more resignations from the more liberal half of the Court in 2009 or 2010. Although it might seem that the oldest member of the Court, Justice John Paul Stevens (age 87), would be the likeliest to step down, those with better sources of information than I have say that Justice Stevens is still extremely bright and funny and appears to outsiders to be in excellent health. Since physically and mentally he appears to be going very strong, some observers have speculated that Justice Stevens may well stay on the Court at least until he breaks Justice Douglas's record as the longest serving Justice in the summer of 2012.

(I confess that I am happy to hear how well Justice Stevens is doing since, partly for personal reasons, Stevens is my favorite sitting Justice. Beyond his general brilliance, he has written by far the best opinions in an area of my scholarly interest, extortion law, and he has personally been the kindest Justice to me both privately and (from what I've been told) in public comments. By the way, my next favorite would come from the conservative wing of the Court.)

Among the other Justices roughly on the liberal side on the Court, Justices Ruth Bader Ginsburg and David Souter are being talked about as possibly retiring or taking senior status if a Democrat wins the White House. Justice Ginsburg, who is 74, strikes some observers as somewhat frail in comparison with other members of the Court. As to Justice Souter, there would be no particular reason for Souter to consider leaving the Court anytime soon, but his natural modesty may lead him to find retirement attractive in a few years, having already exceeded both the 1790-2006 mean (16.2 years) and median (15.3 years) terms on the Court.

In 2005, political scientist Kevin McGuire had falsely [i.e., incorrectly] claimed in print that if Justices O'Connor and Rehnquist left the Court (as they soon did), the median current tenure on the Supreme Court would drop to normal levels. Since in any given year the median justice would tend to be just past the mid-point of his judicial tenure on the Court, the median years of service in any given year has historically been about 9.2 years. (The median years of eventual tenure on the bench has been 15.3 years.)

The median tenure on the 2005 Court just before Chief Justice Rehnquist died was 17.5 years. After Justice Alito joined the Court at the end of January 2006, the median did not drop to the historical norm of around 9 years, but rather only to 14.3 years. So McGuire was wrong. Except for a few months in 1937 (when the median tenure of the then-sitting justices reached 14.4 years), these few months in early 2006 were still the highest median years of service on a current Court from the 1870s through the 1970s.

Now, a year and a half later, the median tenure on the Court has increased to 15.7 years. If there are no retirements until the summer of 2009, the median tenure will grow to 17.7 years, above even the level just before C.J. Rehnquist died.

As for other measures, the last nine Justices to leave the Court were (on average) about 79 years old when they left the Court and had spent about 25 years on the bench, both well above historical norms and slightly higher than at any time in history before the 1980s.

kamatoa:
Of course, life expectancy in general - and particularly for those with access to top-notch health care as the justices do - has dramatically increased since 1870. That may account for much of the increase in the length of tenure's rolling average over the past 137 years.
7.17.2007 4:54am
Kevin Murphy:
Question: Is there any tendency of justices to step down when "their" party controls the presidency? Or are they supposed to ignore such earthly things? And where would Souter and Stevens fall in that anyway, being liberal Republican appointees?
7.17.2007 5:04am
James Lindgren (mail):
Axrually, life expectancies for those who survived to age 53, the usual appointment age, have not risen as much as you might think (perhaps less than a decade; I don't recall the figures, which are in the article). Also, the jump in Supreme Court tenure (ie, post-Warren Court retirement practice) has been far too sudden to be the result simply of increased life expectancy, though that makes longer tenures possible.

We discuss this issue in the linked scholarly article.
7.17.2007 5:08am
Bretzky (mail):
Sixteen years is plenty of time for someone to serve on the Supreme Court. My backing for Supreme Court term limits does not stem from my belief that justices like Stevens are somehow incapable of carrying out their duties; but, from the inherently undemocratic nature of the institution.

Yes, I know that the justices should be protected from the whims of popular agitation while they serve; but, no president should have the ability to directly or indirectly affect national law and policy 20+ years after he has left office. That a Justice appointed by Gerald Ford is still serving on the court is not good.

I won't say we need, but we should have a constitutional amendment limiting the terms of Supreme Court justices to somewhere between 14 and 16 years.
7.17.2007 9:37am
markm (mail):
Is it possible to do a study on changes in the rate of voluntary retirement versus dying in office and being forced to retire by disability and disease?
7.17.2007 9:39am
PersonFromPorlock:

In 2005, political scientist Kevin McGuire had falsely claimed in print...


I think the word you want is "wrongly."
7.17.2007 10:18am
Anonymous Scholar (mail):
Kevin McGuire is a really great guy and excellent scholar. If he made a mistake, he must have done so "mistakenly," "incorrectly," or "wrongly." I am sure that he did not do so "falsely."
7.17.2007 10:42am
Zathras (mail):
"...Justices Ruth Bader Ginsburg and David Souter are being talked about as possibly retiring or taking senior status..."

What does "senior status" look like for a Supreme Court justice? Has any other Supreme Court justice done the same?
7.17.2007 10:49am
Steve2:
Zathras, isn't that effectively what O'Connor has right now, what with the sometimes-sitting-on-Circuit-panels thing?
7.17.2007 12:04pm
e:
That's correct. What I want to know is whether a senior Justice could join the court on a decision in case of the recusal of an active Justice. Anybody? Is that simply the CJ's call?
7.17.2007 1:05pm
arthur (mail):
Senior Supreme Court justices usually just sit on circuits. Justice Powell did that for years. 28 usc 294(a) seems to limit retired justices to "perform such judicial duties in any circuit, including those of a circuit justice, as he [sic] is willing to undertake." I don't think this encompasses sitting in judgment on the Supreme Court.
7.17.2007 1:22pm
gahrie (mail) (www):
My backing for Supreme Court term limits does not stem from my belief that justices like Stevens are somehow incapable of carrying out their duties; but, from the inherently undemocratic nature of the institution.


Do you understand the basic structure of our system of government? The Supreme Court was purposefully designed to be non-democratic. Our government has gotten worse, not better, the more democratic it has become.

A much better idea would be to repeal the 17th Amendment.
7.17.2007 1:34pm
John Schochet (www):
Zathras: "Senior status" on the Supreme Court effectively means that you (1) get paid, (2) sit as a "senior justice" on court of appeals panels however often you want to, and (3) keep a Supreme Court clerk, who gets farmed out to other justices when not working on your appellate cases. This option has been available for quite a while, but most justices have not retired until they were too frail to serve more than nominally as "senior justices."

Kevin Murphy: Yes, justices almost always step down when "their" party controls the presidency. The last two not to do this were Brennan and Marshall, who were too sick to continue by the time they retired under Bush I. But over the last few decades, virtually every justice with the power to control his or her departure has departed under a president of his or her party. And Stevens and Souter are effectively Democrats at this point.
7.17.2007 2:01pm
Ed Unneland (mail):
Brennan was a Republican nominee (Eisenhower).
7.17.2007 2:25pm
Mark Field (mail):

Yes, justices almost always step down when "their" party controls the presidency.


I'm not sure this is true (I'm not sure it's wrong either). Here are the post-WWII justices, together with their appointing party and their replacement party. Asterisk indicates they died in office; otherwise, they resigned:

Burton D=>R
Vinson D=>R*
Clark D=>D
Minton D=>R
Warren R=>R
Harlan R=>R*
Brennan R=>R
Whittaker R=>D
Stewart R=>R
White D=>D
Goldberg D=>D
Fortas D=>R
Marshall D=>R
Burger R=>R
Blackmun R=>D
Powell R=>R
Rehnquist R=>R*
O'Connor R=>R

Source.

Thus, excluding those who died in office, 6 resigned during the Presidency of the opposite party, 9 resigned during the Presidency of the same party. The sample size is small enough that I doubt this difference is significant. There may, of course, be other reasons (health, policy views rather than partisan affiliation, etc.) to explain the behavior, but it doesn't look like the justices consciously choose a President of the same party when deciding to resign.
7.17.2007 2:55pm
JosephSlater (mail):
I'll vote with Bretzky that Supreme Court Judges should have term limits. Conservatives who want to claim that the Court is or should be a body not at all responsive to the electorate or politics might want to google the phrase "elections have consequences" used by the right wing with regards to Alito and Roberts.

I'm fine with "elections have consequences," in general, but as to the actual people in office, I don't see why elections in 2000 should have so specific an effect on the populace decades latter.

Oh, and the U.S. government has improved since it's become more democratic.
7.17.2007 3:00pm
James Lindgren (mail):
I'll post a paper online in a month or so, but Ross Stolzenberg (U. Chicago) and I have carefully analyzed the data since 1789 and justices are about 160% more likely to retire during the first two years of a president of the same party as the one who appointed them v. the opposite times. On the flip side, justices are more likely to die during the terms of presidents of an opposing party (suggesting that some are refusing to retire and trying to hang on until their party takes office).
7.17.2007 4:48pm
John Schochet (www):
Mark Field:

While you're right about some of the "opposite party" departures, your list ignores some critical information. Here's an annotated version of your list, and I'll note off the bat that I'd argue this is really a post-Warren phenomenon, so I'm going to ignore the justices who retired before Warren (which was 39 years ago):

Burton D=>R (pre-Warren)
Vinson D=>R* (pre-Warren)
Clark D=>D (pre-Warren)
Minton D=>R (pre-Warren)
Warren R=>R (he was allied with the Democrats by the time he retired, wanted Johnson to appoint his successor, but was stuck with Nixon appointing his successor because of the botched Fortas nomination, so he tried to retire strategically)
Harlan R=>R* (same party)
Brennan R=>R (similar Warren -- he was a Democrat by the time he retired and would have preferred to leave under a D but was forced out for health reasons)
Whittaker R=>D (pre-Warren)
Stewart R=>R (same party)
White D=>D (same party)
Goldberg D=>D (pre-Warren)
Fortas D=>R (Fortas was forced to resign -- he did NOT want to quit under Nixon)
Marshall D=>R (Marshall was forced off for health reasons -- he would have preferred to leave under a D)
Burger R=>R (same party)
Blackmun R=>D (Blackmun was effectively a D by the time he retired and wanted to retire under a D)
Powell R=>R (same party)
Rehnquist R=>R* (same party, but he died, so he didn't have any control over it in the end)
O'Connor R=>R (same party)

Point being that no one voluntarily left under a president s/he didn't want appointing his or her replacement, even though some justices effectively became Democrats while in office and others were forced to leave under presidents they didn't want appoint replacements due to declining health (Brennan, Marshall) or scandal (Fortas). Take a look at the article I co-authored on the topic, specifically pp. 1101-1110 (it's cited in Prof. Lindgren's article).
7.17.2007 6:35pm
John Schochet (www):
One more quick note: Historically, several presidents have made what they would probably consider "mistakes" in nominating justices who turned out to be ideologically very different than expected. Most of these are R nominees who turned into Ds (Brennan, Warren, Blackmun, Stevens, Souter), and one was a D nominee who became conservative on some issues (White). I doubt these "mistakes" will ever be made again since partisans are much more aware of these issues. See FN 95 of my note.
7.17.2007 6:40pm
Mark Field (mail):

Point being that no one voluntarily left under a president s/he didn't want appointing his or her replacement, even though some justices effectively became Democrats while in office and others were forced to leave under presidents they didn't want appoint replacements due to declining health (Brennan, Marshall) or scandal (Fortas).


I'm skeptical of any claim to know the internal motivations of the retiring justices.


Historically, several presidents have made what they would probably consider "mistakes" in nominating justices who turned out to be ideologically very different than expected.


I assume that by "historically" you mean "within the last 54 years", since all your examples come from that period. The result isn't very surprising since Rs have appointed the vast majority of justices in that time (17-5 -- that counts Goldberg/Fortas as one appointment, but it wouldn't change the result even if they counted as 2). That's a ratio of 3-1, and the "turncoat" justices broke 5-1. Given the small samples, that's hardly unusual.
7.17.2007 7:40pm
John Schochet (www):
Mark-

For citations regarding justices' motivations for leaving, read the footnotes on pp. 1101-1110 of my law review note. And you're right about the reasons for "turncoat" justices. I still don't think we're likely to see nearly that many, if any at all, in the next 54 years. See n. 95 of my note. Presidents have become much better at ideological vetting. Souter will probably be the last.

-John
7.17.2007 8:37pm
Mark Field (mail):

I still don't think we're likely to see nearly that many, if any at all, in the next 54 years. See n. 95 of my note. Presidents have become much better at ideological vetting. Souter will probably be the last.


Agreed.
7.17.2007 8:57pm
James Lindgren (mail):
Reasons given for retiring from jobs in the US are notoriously unreliable. That is a main reason to use statistics is to cut through the mixed motives and misleading reasons often given for stepping down.

We also have a nice measure of health at the time of retirement--years left to live--which we use in some models.
7.17.2007 11:42pm
theobromophile (www):

I won't say we need, but we should have a constitutional amendment limiting the terms of Supreme Court justices to somewhere between 14 and 16 years.


If you're going to do that, why not 18 years, so that there will be a retirement every other year?

Even if you institute term limits, the justices will then do what O'Connor does and sit on circuit courts. You will still have an appointed judge with a lot of influence - perhaps more than the average circuit court judge because her former colleagues may give more deference to her opinions.

In the alternative, you could mandate that justices retire after 18 years, at which point, they cannot serve on federal courts. In some ways, that would be a good way to take a young judge out of the system. A supremely talented 45-year-old judge would be out of the federal courts by age 63 - not a bad deal if you dislike his jurisprudence.


Oh, and the U.S. government has improved since it's become more democratic.

Considering that 90% of our laws are made by unelected officials (i.e. those at administrative agencies), how can you call the current system "democratic?" We have a fourth branch of government which operates without accountability.
7.18.2007 3:27am