The Myth That Justices Strategically Retire.(Statistical Data Included)

SAUL BRENNER [*]

Epstein, Segal, Spaeth, and Walker (1996) argue that "a justice of advanced age enjoying relatively good health may be more prone to retire if the incumbent president is likely to appoint an [ideologically] acceptable replacement." "Conversely, a justice of advanced age suffering health problems may attempt to postpone retirement," if an ideologically inappropriate president is in power. Thirty-three justices left the Court since 1937. Twelve of these did so prior to an "advanced age" (i.e., age 70). Of the remaining 21, eight left during the incumbency of an ideologically congruent president and only two of these justices, Burger and Powell, might have strategically retired. In short, the claim that the justices strategically retire is a myth.

Most justices on the United States Supreme Court care a great deal about pursuing their policy goals. But this does not suggest that a justice should remain on the Court as long as possible. A justice who behaves in this way will eventually be forced to retire because of poor health or disability and this may occur when the incumbent president is of a different ideological orientation than the justice in question. As a consequence, the justice is likely to be replaced by a successor who will pursue very different policy goals. To avoid this problem a rational justice might attempt to retire when an ideologically congruent president is in power. As Hagle (1993, p. 30) stated:

If they are politically motivated, justices who share the president's general ideological orientation will be more likely to time their resignation to maximize the attainment of their shared policy goals. Conversely, justices who oppose the president's policy goals will be more likely to defer retirement, or time it to minimize the attainment of the president's policy goals (thus, maximizing their own policy goals).

If, for example, Thurgood Marshall had retired in 1980, at age 72, Carter, and not Bush, would have nominated his replacement. Marshall would be foregoing his last 11 years on the bench, but Thomas was 43 at the time of his confirmation and might serve 35 or even 40 years. Indeed, Thomas told two of his law clerks that he intended to remain on the Court for 43 years (Baum, 1998, P. 75).

With the help of modem medicine and with a "normal" turnover of the presidency between the two political parties, a modem justice usually does not have to retire in her 60s in order to leave the Court when an ideologically favorable president is in power, while a justice who waits until her 80s or even her late 70s is engaging in highly risky behavior. A justice, however, might look to some time in her early 70s to strategically retire.

In the post-1932 era, the only time when one political party dominated the presidency for as much as twenty years was the period of Democratic dominance from 1933 to the end of 1952. Conservatives on the Court in this period might have had difficulty in retiring strategically. In order to do so, they would have had to retire either prior to 1933 or after 1952. The next longest span in this era is the 12-year period of Republican dominance from 1981 through 1992, when Reagan and Bush were in office. When Marshall failed to retire during the presidency of Jimmy Carter, he faced this era. Marshall retired in 1991 at the age of 83.

We are interested not only in what is rational for the justices to do, but also in how the justices actually behave. Epstein, Segal, Spaeth, and Walker (1996), contend that it is not uncommon for justices to time their retirement so that an ideologically compatible president will be able to name their replacement:

One of the most important [motives for retiring from the Court] is political timing. For example, a justice of advanced age enjoying relatively good health may be more prone to retire if the incumbent president is likely to appoint an acceptable replacement. Conversely, a justice of advance age …