Leaving the Bench

• Author: Mark Walsh
• Pages: 20-21

Supreme

Court

Report

Leaving the Bench

Speculation swirls regarding Supreme Court retirements

By Mark Walsh

With about two months left in the U.S. Supreme Court’s current term,

speculation about a retirement from the bench is shifting into overdrive—

if it weren’t there already.

Justice Anthony M. Kennedy, who is 81 and marked 30 years on the high

court in February, has been the main subject of the retirement rumors, which

also were rampant a year ago in the fi rst months of President Donald Trump’s administration.

The rumors went unfulfi lled as Kennedy decided to stay on at least one more term.

Justice Ruth Bader Ginsburg is older—she turned 85

on March 15—but is known for her antipathy towar d

Trump and has made it clear in multiple public appear-

ances this year t hat she has no intention of retiring as

long as she can perform the job of justic e “full steam.”

Justice Stephen G. Breyer turns 80 in Aug ust, but like

Ginsburg was nominate d by President Bill Clinton, a

Democrat. As par t of the court’s liberal bloc on many

issues, he seems to be disi nclined to retire imminently.

Kennedy, meanwhile, is known to have some desi re

to step down and enjoy some golden years, perhaps to

devote to interests such a s improving civics education

in the schools. He was nominated by Pr esident Ronald

Reagan in 1987 af ter the defeat of Robert H. Bork and

the withdrawal of Dougla s Ginsburg for the seat of

Justice Lewis F. Powell Jr. Kennedy joined the high court

on Feb. 18, 1988, an anniversary rec ently acknowledged

from the bench by Chief Justice John G. Robert s Jr.

There is no shortage of setti ngs in which the retirement

question is being watched wit h keen interest—the White

House, Senate and the chambers of t he federal appeals

court judges who make up most spot s on the o cia l

and uno cial short lists for fi lling a high cour t vacancy.

Another place where Supreme Court re tirements

are being studied is in the ivor y tower. The retirement

decisions or nondecisions by the justices have been

studied by a surprisi ng number of political scientists

and other researcher s.

“It’s a subject of perpetual interest , and it will be as

long as we have a powerful Supreme Cour t full of elderly

justices,” says Ross M. Stolzenberg, a profe ssor of so-

ciology at the University of Chicago who ha s written

or co-authored two studie s about justices’ departures

from the court. Th is includes not just by retirement

but by death; Stolzenberg also ha s studied the justices’

mortality rat es after retirement.

‘WISHFUL THINKING’

If Kennedy decides to retire u nder Trump, he would

be following a long tradition of justices c onsciously

leaving the court under a president of the same pa rty who

appointed t hem.

A more complicated question is whether justice s also

seek to time their retir ements with political or ideological

goals in mind—and whether they have been succ essful.

The conclusion of the most recent study is that justice s

have not been all that success ful in bringing about an

ideologically like-mi nded successor—a new member of

the court who shares t heir judicial or political outlook.

“Justices’ political retirement goals h ave often turned

out to be wishful t hinking,” wrote Christine K exel

Chabot, a scholar in residence at t he Loyola University

Chicago School of Law, in Do Justice s Time Their

Retirements Politically?—published in draft form in

Febr ua ry.

“Some justices found that they were rel atively far

removed from ideologies of part y leaders (and potential

successors) by the time they retired, a nd justices who

timed their retirements polit ically had limited success

in obtaining like-minded replacements.”

Chabot pointed out that since 1954 , when justices fi rst

received the option under federal law to reti re at full sal-

ary at age 65 and w ith 15 years of service, 22 justices have

retired and two d ied in o ce: C hief Justice William H.

Rehnquist in 2005 and Justice A ntonin Scalia in 2016.

The retirement formula changed in 1984 t o reduce the

minimum requirement of ser vice to 10 years, as long as

the judge’s age and years of servic e totaled 80.

Chabot analyz ed recent departures from the cour t as

well as justices who have pas sed up the opportunity to

retire under a political ly and ideologically compatible

president late in their tenure.

The best example of that is Ginsburg , who spurned

calls from va rious quarters—law professors and others—

to retire during Pre sident Barack Obama’s tenure to help

ensure her seat would be fi lled by another progressive.

Ginsburg has suggest ed publicly that, given Republican

control of the Senate during six of the eight yea rs of

Obama’s presidency, there was little guarante e that

the president could have won confi rmation of a liberal

The Docket

20 || ABA JOURNAL MAY 2018