Judicial Retirements and the Staying Power of U.S. Supreme Court Decisions

• Author: Georg Vanberg,Stuart Minor Benjamin
• DOI: http://doi.org/10.1111/jels.12095
• Published date: 01 March 2016
• Date: 01 March 2016

Judicial Retirements and the Staying

Power of U.S. Supreme Court Decisions

Stuart Minor Benjamin and Georg Vanberg*

The influence of U.S. Supreme Court majority opinions depends critically on how these

opinions are received and treated by lower courts, which decide the vast majority of legal

disputes. We argue that the retirement of justices on the Supreme Court serves as a simple

heuristic device for lower court judges in deciding how much deference to show to

Supreme Court precedent. Using a unique data set of the treatment of all Supreme Court

majority opinions in the courts of appeals from 1953 to 2012, we find that negative

treatments of Supreme Court opinions increase, and positive treatments decrease, as the

justices who supported a decision retire from the Court. Importantly, this effect exists over

and above the impact of retirements on the ideological makeup of the Supreme Court.

I. Introduction

Opinions by the U.S. Supreme Court fundamentally shape the legal landscape and thus

have a significant effect on social, economic, and political outcomes. As scholars have

long recognized, much of this impact is realized indirectly through the manner in which

high court decisions (which are relatively few in number) guide and constrain the deci-

sions of other courts in the judicial hierarchy (e.g., Cameron et al. 2000). Put differ-

ently, the influence and importance of any given Supreme Court decision is largely a

function of its treatment in lower courts. Do lower court judges faithfully follow the

opinion, ignore it, or perhaps cast doubt on it? Given that the manner in which

Supreme Court decisions fare in the lower courts is so central, it is not surprising that

scholars have taken great interest in understanding what drives lower court treatments

of Supreme Court precedents. A rich literature, much of it developed over the last 15

years, has illuminated this question. Thus, we now have a good understanding of how

the characteristics of Supreme Court opinions—including the number of concurrences,

as well as the size and breadth of the majority coalition—shape subsequent lower court

treatment (Benesh & Reddick 2002; Benjamin & Desmarais 2012; Black & Spriggs 2008;

*Address correspondence to Stuart Minor Benjamin (benjamin@law.duke. edu) or Georg Vanberg (georg.van-

berg@duke.edu). Benjamin is Douglas B. Maggs Professor of Law, Duke Law School; Vanberg is Professor,

Department of Political Science, Duke University.

Thanks to Tim Calloway, Sean Chen, and Doug VanDerwerken for tremendous assistance in creating the data

set, Jane Bahnson, Brittany Edwards-Franklin, Andrew Jennings, Kelly Leong, Cassidy Nolan, and Benjamin Oster

for valuable research assistance, and Jack Knight and Mat McCubbins for useful comments.

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Journal of Empirical Legal Studies

Volume 13, Issue 1, 5–26, March 2016

Corley 2009). Similarly, scholars have made significant progress in uncovering how

dynamic changes in the legal environment, including the age of Supreme Court opin-

ions, and ideological shifts between the enacting and subsequent Supreme Courts affect

how lower courts treat precedents (e.g., Westerland et al. 2010; Hansford & Spriggs

2006).

In this article, we focus on a factor that has escaped systematic analysis: the impact

of personnel change on the Supreme Court over and above the impact of such change

on the ideological composition of the Court. Specifically, we argue that—separate from

the impact of judicial turnover on the general ideological position of the Court—the

retirement of Supreme Court justices who joined a majority opinion significantly

impacts the staying power of the decisions they supported: As retirements reduce the

number of justices on the Court who explicitly signed on to an opinion, lower court

judges become significantly less likely to follow the opinion, and more likely to openly

cast doubt on it. We argue that this effect results from the fact that judges on lower

courts confront a complex task in applying a large number of potentially relevant prece-

dents to the cases before them. As they do so, one key concern is to avoid censure by

the current Supreme Court. In navigating this problem, lower court judges have strong

incentives to look for simple heuristics that can help them identify decisions that are

more likely to have the support of the current Court (and should therefore be treated

positively) and those less likely to enjoy such support (and can therefore be narrowly

interpreted or ignored with less peril). While there are numerous such markers (many

of which we control for in the empirical analysis below), the retirement of justices who

joined a decision constitutes a particularly prominent one that is easy to spot. A dwin-

dling number of justices who explicitly signed on to an opinion readily suggests that the

opinion may enjoy less support by the current Court.

In focusing on this effect of judicial retirements, we highlight an aspect of change

in the Court’s membership that has received scant attention. Most analyses of turnover

on the Court are concerned with the way such changes shift the Court’s ideology (e.g.,

Ruckman 1993; Shipan & Shannon 2003), and what the impact on future Supreme

Court decisions is likely to be (e.g., Baum 1992; Segal 1985).

1

Our findings suggest that

the effects of turnover on the Supreme Court go well beyond how the Court decides

future cases. Retirements also shape the manner in which appeals courts implement

existing precedents. Because these courts resolve the vast bulk of cases, this implies that

the impact of judicial turnover on our legal system is potentially far greater than has tra-

ditionally been recognized. Justices may think of themselves as creating precedents that

will long outlive them, but their opinions may instead diminish in importance as the jus-

tices who supported them leave the Court.

1

Legal scholars and social scientists have made considerable progress in understanding the appointment process

and exploring how ideological shifts on the Supreme Court affect future Supreme Court decisions. One impor-

tant question in the literature concerns whether appointments will influence future decisions only when they

“move the median” (Moraski & Shipan 1990) or whether appointments can have a significant impact even if they

do not affect the Court’s median (Carrubba et al. 2012).

6Benjamin and Vanberg