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The Timing of Supreme Court Retirements:
Over at SCOTUSblog, Tom Goldstein has a long post speculating on how Justice Ginsburg's illness might impact the decisions of other Justices to retire. The gist of the post is that "the retirement decisions of the Justices are inevitably tied together to some extent," and that other Justices might be more inclined to retire sooner if they think that Justice Ginsburg's illness might force her to retire later in the Obama Presidency. Why? Goldstein suggests that "a practice has developed" by which Justices try not to retire the same year "to avoid the complications of multiple Supreme Court confirmation hearings in a single summer." He writes:
Though precise accounts vary, it is understood that Justice O'Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.
  Goldstein qualifies his suggestion with a lot of caveats. The most important is that we just don't know what Justices are going to do: These are highly personal decisions of a few specific people who have never done this before, so it's not something you can reason out from first principles. Even so, I'm skeptical about the basic dynamic Goldstein suggests.

  First, I'm not sure "a practice has developed" that Justices try to space out retirements. True, it did happen with Justice O'Connor, at least as best we can tell. But I don't recall hearing other examples of it. (If you know of other examples, please let me know and I'll update the post.) Second, even if that is a general preference, timing a retirement around predictions of a colleague's declining health is pretty difficult. We learned that from Justice O'Connor's example: O'Connor resigned July 1, 2005, apparently in order to space out her retirement and Rehnquist's, but Chief Justice Rehnquist ended up passing away just two months later. Third, the Senate recently went through two Supreme Court confirmation hearings a few months apart, and the system worked just fine. Fourth, the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates (assuming no major surprises emerge in the confirmation process). That seems just as true if two vacancies arise at the same time.

  For all these reasons, I tend to doubt that Justice Ginsburg's health will have any impact on what the other Justices are thinking in terms of their own retirements. It's certainly possible — as I said, these are highly personal decisions of a few specific people who have never done this before, so anything is possible. But I tend to doubt it.

  UPDATE: A reader who follows the Supreme Court very closely tells me that there is in fact evidence that the Justices have talked about this issue in the past, and that there is a general preference for spacing out retirements if possible.
jim47:
Beyond that, can we even be sure that Stevens or Souter will make a calculated retirement for the purpose of letting a Democrat pick their successors? It has not been a universal practice for Justices to retire at ideologically opportune times, and even if we assume either will retire with an eye toward his replacement, do we know that he would want a Democrat-appointed replacement? Both are on the "liberal" wing of the court, but both were appointed by Republicans and might still have enough identification as such to muddle any determination of who they want picking their successors.
2.9.2009 3:29am
J. Aldridge:
All of the justices seem inclined to serve as long as they physically/mentally can. I won't be surprised if there are no retirements during Obama's term.
2.9.2009 4:12am
krs:
jim47, my understanding of the speculation around Souter and Stevens is this:

Stevens will serve as long as he's able, but he's 88 now and will be 96 at the end of Obama's presidency if Obama serves 2 terms and if Stevens lives that long... thus, the speculation about him retiring during Obama's presidency is more a matter of actuarial probability than speculation about his political preferences.

For Souter, the general thought is that he doesn't like Washington and the Supreme Court enough to stay on as long as he's able. Thus, with each passing year it's increasingly likely that he'd want to retire. I don't know that politics or the identity of a successor have much to do with it.

Stevens was appointed by the GOP, but that was in the 70s, and the party has changed a lot. Souter was appointed by the GOP also, but as Jan Greenburg's book details, he was a bit of an unknown then. I suspect that neither is terribly political, nor would either be bothered by the idea of Obama or McCain appointing their successors
2.9.2009 4:19am
HenryChew (mail):
Prof OrinKerr,

I think it also happened with the late Justice Blackmun, at least according to Linda Greenhouse's book with respect to his and late Justice White's retirement. I can't recall the exact words, but I think a correspondance between Justice Kennedy and then Justice Blackmun indicated that the court didn't need two retirements at one time.

And a recent study by Terri Peretti and Alan Rozz suggested that the Justices are predictably "influenced in their retirement decisions by their sense of importance and utility on the Court, a critical component of the self-esteem, prestige, and professional satisfaction they naturally seek to safeguard and enhance." (-Original posted by David Stras on scotus blog.)

If this study is valid, it would be interesting to find out if a change of solicitor general under a different administration changes how Justices value themselves and hence would be willing to stay longer.
2.9.2009 6:13am
paul lukasiak (mail):
If this study is valid, it would be interesting to find out if a change of solicitor general under a different administration changes how Justices value themselves and hence would be willing to stay longer.
_
I suspect that the change in administrations will keep Souter on the court, at least through 2011 -- if he sees a GOP resurgence, he may abandon ship at that point.
_
I'd like to see Stevens retire ASAP -- he has his own health problems, and one suspects that he hung in there to prevent Bush from getting the opportunity to put another far-right extremist on the court.
2.9.2009 8:25am
BT:
It just seems to me, as a non-lawyer and interested observer, that we could avoid most of the tea leaf reading regarding the SC if we had term limits of say 25 years instead of lifetime appointment. Yes we would loose some good justices but we would get rid of just as many or more that should have been long gone. There are no doubt other reforms that could be put in place but I would like to see atleast that. Having said that, while Justice Ginsburg is not one of my favorites, I wish her a speedy recovery.
2.9.2009 9:20am
Oren:

Both are on the "liberal" wing of the court, but both were appointed by Republicans and might still have enough identification as such to muddle any determination of who they want picking their successors.

Stevens is famous for quipping that he's gone from being on the right wing of the court to being on its far left without changing any of his positions. When he joined, the left wing of the court was defined by Brennan, Blackmun and Marshall.
2.9.2009 9:42am
Paul Horwitz (mail):
Orin, check out the passage of The Brethren dealing with Black and Harlan's retirements, in which, although both of them are in extremis, Harlan does his best to space out his retirement a little so that Black can receive his due tribute without having to share the spotlight. Not a question of spacing things out broadly in that case, and it was more about personal relationships than the institution, but it's a small example for the list.
2.9.2009 9:55am
Not in the Cert Pool:
Stevens is going for the longevity record. He will not retire until he holds that record.
2.9.2009 10:22am
krs:
I think Prof. Kerr's general point sums it up nicely: we're talking about "highly personal decisions of a few specific people who have never done this before."
2.9.2009 10:36am
Duffy Pratt (mail):
Yes, some justices might want to space the retirements because they realize that Congress has a hard time doing two things at once. If they looked a little harder, they would realize that Congress has a hard time doing one thing at once, and that might change their thinking.
2.9.2009 10:36am
Eze (mail):
Thank you, Prof. Kerr.

I used to really, really like the SCOTUS Blog, but lately it has become more and more damaged by Goldstein's hubris. (Yeah, he was right about Scalia writing Heller, but I doubt his client in that case, DC, was happy with him boosting his bona fides by handicapping against it.)

In this case, Goldstein should have just said "shut up about the retirement because you don't know, and neither does anyone else." Instead, he said "shut up about the retirement because you don't know, and I probably do." All of a sudden he's a geriatric oncologist (and a psychic)? Indeed, even if he's right that Justices like to space it out, why would Souter and Stevens feel the need to allow Ginsburg ot retire on her own pace and not the other way around? If anything, I would think believing that the other two want to leave soon might convince Ginsburg that she should leave first if, in fact, her health is pushing her out soon anyway. Yes, I know, O'Connor, but that's because she was junior to the Chief, so may have felt a need to defer to him. The situation is exactly opposite here, which could matter given that the Justices always defer to seniority (except for seating at lunch, where they sit, respectively, in the chairs of the Justices they replaced). Also, Tom assumes that Stevens and Souter learned nothing from what happened with O'Connor and Rehnquist, highly unlikely. In short, he might be right, he might be wrong, but either way it's a matter of sear luck.

As a lawyer, I think I can say that this sort of hubris is why non-lawyers hate lawyers -- we really think we know everything. Please, Tommy, stick to what you know.
2.9.2009 11:10am
David Newton:

"I'd like to see Stevens retire ASAP -- he has his own health problems, and one suspects that he hung in there to prevent Bush from getting the opportunity to put another far-right extremist on the court."


Exactly how many "far-right extremist"s did Bush put on the court in your opinion? So far as I can see you are accusing Alito and Roberts of being precisely that which is patent nonsense. Myers was not exactly the best first choice for one of the vacancies, but both of the other choices have turned out to be excellent justices.
2.9.2009 11:43am
James Gibson (mail):
Of all the comments I think Aldridge is the closest to true prophecy. No one will leave unless its with a sheet over their heads.

First, Since I haven't forgiven Ginsburg for Heller yet I am not hoping she will recover enough to continue serving (in short I hope she has a long medical leave of absence). She was the only person who saw the retiree flaw in the DC City arguments and yet she still went with the liberal wing in a partisan dissent.

Stevens is too egotistical to ever leave other then by death and everyone knows it. Forget the idea he didn't retire under Bush because he wanted to prevent a change in the court, he just plain doesn't plan to leave. Like Reinquist it will be with a sheet over his face even if it means enough time has past to elect another Republican or at least see a change in the House or Senate.

Ginsburg seems equally that way. This is the second cancer she has had and she has already missed a number of sessions because of health. But she isn't about to leave knowing that there are few active justices as liberal as herself that can be put forward to replace her. Barrack would have to nominate himself to fill her shoes as one would say.

This leaves Kennedy, Scalia, Souter, and Breyer who are 70Plus and the one the Libs want to see gone is Scalia. But outside of girth there is no history of serious medical problems with him at this time. As for the others, the odds are they will step in front of a bus before something else forces them to leave the court.
2.9.2009 12:00pm
Green Monster (mail):
The justices are appointed for life. I believe it was either Brennan or Marshall who said something like, "I was appointed for life, and I intend to complete my term." As it happened, health problems drove each to retire before completing his term.

I'm guessing that health concerns, and only health concerns, will dictate who retires next---and when.
2.9.2009 12:13pm
Charlie (Colorado) (mail):
There's one other point I think has to be mentioned: one year mortality even for stage 1 pancreatic CA is about 20 percent. The odds are about 1 in 5 that Ginsberg will retire this year whether she wants to or not.
2.9.2009 1:14pm
Duffy Pratt (mail):
Green Monster:

Douglas is the one who said he intended to serve his term. He also told his clerks that if he died, they should keep wheeling him out, until someone noticed.
2.9.2009 1:58pm
Oren:

Exactly how many "far-right extremist"s did Bush put on the court in your opinion? So far as I can see you are accusing Alito and Roberts of being precisely that which is patent nonsense.

Alito and Roberts are in the top 10% of conservative Justices over the past 50 years (I put them 4th and 5th respectively behind AS, WR and CT -- there are roughly 50 Justices appointed since WWII). How does your top-5 most conservative since WWII stack up?

Personally, I think the POTUS is entitled to put ideologically compatible Justices on the Court, so long as they are not outside the mainstream. In my subjective (and, let's face it, how ideological of a justice ought to be confirmed is a subjective matter), Alito was borderline but ultimately OK, Bork was way out.
2.9.2009 2:07pm
sobi:
I'm not sure that retiring to ensure a like-minded president appoint the replacement is that extreme of a sacrifice. After spending 20-odd years adding a liberal perspective to the direction of the law, it seems reasonable to want to project that effort into the future.

However, I do think the Justice Souter should stay. He hasn't served long enough to retire, and we need him.

I know that both of these statements could be perceived as serving my political interests, because they do, but I don't care.
2.9.2009 2:26pm
Ira Brad Matetsky:
An interesting thought experiment (no matter what one's politics or legal philosophy) is to consider how different the constitutional history of the past two decades would have been if Justice Marshall had stayed on the Court just one or two more years.
2.9.2009 2:51pm
Carl S:
By a quick calculation, 26 justices who have been appointed since FDR took office in 1933, have retired (or died in office). 17 of those justices lived 4 or more years after retiring. This includes everyone except Marshall and Rehnquist since the early 1970s (Douglas, Stewart, Burger, Powell, Brennan, White, Blackmun, and [I'm assuming] O'Connor). Additionally, five justices have died in office--making their retirement preferences moot. Only, Frankfurter, Black, Harlan, and Marshall retired, then died soon afterward. I will admit that many of those who lived for several years afterward would have been in no condition to serve, but no one questions Ginsburg, Stevens, or Souter for their acuity. One should also note that the many justices who retired because they did not like the job did so long before Souter's (approaching) 19 years.
2.9.2009 3:13pm
John A (mail):
Meanwhile, this we do not need - *Ginsburg and Guns?* -

"But too many lose sight of the fact that the Heller decision was a 5-4 decision. Four justices - only one short of a majority - adopted the liberal argument that the Second Amendment does not involve any rights whatsoever for private citizens. The Second Amendment was only a single vote away from being eradicated from the Constitution."



Where has Mr. Blackwell been since, oh, a couple of hours after the decision? Is he unaware (barely acceptable) or is it something else? ALL NINE JUSTICES EXPLICITLY STATED THAT THE AMENDMENT DECLARED AN INDIVIDUAL RIGHT!
2.9.2009 3:27pm
JoeSixpack (mail):
Expanding on Duffy Pratt's comment, can we really be sure that Stevens and Ginsburg are actually still alive? Or has the liberal machine been wheeling them out for the last three years hoping that nobody will notice and a Democrat would win in 2008? The timing of Ginsburg's latest cancer announcement is particularly suspicious.
2.9.2009 3:40pm
Green Monster (mail):

An interesting thought experiment (no matter what one's politics or legal philosophy) is to consider how different the constitutional history of the past two decades would have been if Justice Marshall had stayed on the Court just one or two more years.


Sure---that's one interesting one. Another is to suppose that Edith Jones had been appointed rather than David Souter or that Robert Bork or Douglas Ginsburg had been appointed rather than Anthony Kennedy.
2.9.2009 4:26pm
J. Aldridge:
Oren wrote: "Personally, I think the POTUS is entitled to put ideologically compatible Justices on the Court, so long as they are not outside the mainstream."

Define "mainstream" please.
2.9.2009 6:29pm
ll (mail):

BT:
It just seems to me, as a non-lawyer and interested observer, that we could avoid most of the tea leaf reading regarding the SC if we had term limits of say 25 years instead of lifetime appointment. Yes we would loose some good justices but we would get rid of just as many or more that should have been long gone. There are no doubt other reforms that could be put in place but I would like to see atleast that. Having said that, while Justice Ginsburg is not one of my favorites, I wish her a speedy recovery.


The better reform would be 18 year terms, with one term ending every two years.
2.9.2009 11:54pm
Down from the Ivory Tower:
James Gibson wrote:

Barrack would have to nominate himself to fill her shoes as one would say.

You can't be taken seriously if you can't even spell the president's name.
2.10.2009 1:23am
theobromophile (www):
Stupid question: if the President is of the same political persuasion as two of the potentially retiring justices, but the Senate is not, would they want to retire simultaneously? That way, you're forcing a Senate to fight two confirmation battles at the same time. (IIRC, this happened to some extent when Rehnquist was elevated to Chief Justice, and Scalia nominated shortly afterwards.)
2.10.2009 2:12am
Larry Fafarman (mail) (www):
If there were not such big fights over each confirmation, multiple retirements at the same time would not be a problem.
2.10.2009 4:46am
MikeS (mail):
the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates

This assumes no filibusters. Combining the virulence of the GOP insistence that every Bush nominee deserved an up-and-down vote with the lengths gone to deny Clinton nominees even a committee hearing, I consider a filibuster of Obama's first Supreme Court nomination all but certain.
2.10.2009 5:56pm

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