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Tuesday, October 21, 2014

Supreme Retirements and the Habit of Politics

There's been a lot of debate over the past year or so about whether Justices Ginsburg and Breyer should or will retire in order to maximize the chances that President Obama will be able to name their successors. In an effort to put out this fire, Justice Ginsburg recently fed the flame by asserting that “If I resign anytime this year,” the President “could not successfully appoint anyone I would like to see in the Court.” Jeffrey Toobin asked the President about this, and he responded with a measure of skepticism, while conceding: "Life tenure means she gets to decide, not anybody else, when she chooses to go.”  Underlying these events is an important question: should supposedly neutral Justices time their retirement decisions based on what seems like political strategy?

Consider a few recent instances when Justices have commented on the timing of their retirement decisions.

  • Justice Souter was asked back in 2009 whether he'd have retired if Senator McCain had won the presidency. Souter's reply began: "Probably so."
  • Justice Scalia was asked in a 2012 interview, "Will you time your retirement so that a more conservative president can appoint a like-minded justice?" Scalia initially said "I don't know," but, when pressed, later said: "I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years ...."
  • When Justice Stevens was interviewed about retirements in January, he was emphatic that his retirement wasn't the product of timing: "My decision wasn't made for any political reason whatsoever ...." But, when asked if it was "appropriate" for a Justice to consider politics, Stevens said yes, noting: "You're interested in the job and the kind of work that's done, you have to have an interest in who's going to fill your shoes."
  • In addition to her public comments noted earlier (and many others), Justice Ginsburg has repeatedly said that she will retain her post "as long as I can do the job full steam," regardless of who controls the Senate. Those remarks are obviously in tension with Justice Ginsburg's more recent assertions about the confirmability of people that Ginsburg herself "would like to see on the Court."

There are a couple interesting patterns here. First, no Justice seems eager to trumpet political calculations as the basis for timing her retirement. Rather, the Justices express interest in political assessments only responsively, and typically only when pressed. Second, and in some tension with the first point, all of these Justices ultimately accept or acknowledge that political calculations are relevant. What can explain this?

One conventional answer starts with the idea that politics is only contingently relevant to retirement decisions. On this view, what really matters is that each Justice wants a successor who will share her ideological vision and continue it. It just so happens that one political party or another is more likely to appoint a successor with the desired ideology. Yet this contingent relationship between ideology and politics is fraught, since it can easily be mistaken for out-and-out partisanship. And, when it comes to the government in general and the judiciary in particular, appearances of impropriety can matter as much as realities. On this view, the Justices might be striving for a kind of acoustic separation, in that they want to reveal part of their True Thinking to part of the population, while preserving the overall appearance of non-partisanship. Justice Ginsburg's recent comments may be causing that acoustic separation to break down, however, in that her highly publicized remarks make clear that political calculations are at work here.

Should the Justices time their retirements based on their expected successor and, if so, should they publicly explain that intention? I confess that I am torn on this point. On the one hand, if the Justices are really thinking about political calculations, and if it is truly naive to expect anything else from them, then it would probably be better for the Justices to be open about that. Doing so might prompt a political response, such as a movement toward judicial term limits. Or perhaps it wouldn't, and the public would be just as happy to let things go along as they have--with each Justice quietly timing her retirement in order to advance the goals of one party or another, but only as a means for promoting particular visions of the law. Either way, the people would be better able to make an informed choice about how things actually work at the Court. On this view, Justice Ginsburg has recently done a great service in drawing attention to what seems like a widespread (though perhaps not universal) pattern of thinking on the Court.

On the other hand, it is hard to mark the boundary between contingently thinking in political terms and just thinking in political terms. This applies both to the Justices and to the public. Every time that Justice Ginsburg thinks about who can and can't get nominated and confirmed, she gets a little more used to thinking of President Obama as her friend and the Senate Republicans as her adversaries. And every time that Justice Ginsburg says those thoughts in public, members of the public get used to thinking of Justice Ginsburg as having that partisan orientation. It is hard work to remind yourself: "This partisan alliance is only contingent." The tendency of mental habits to influence conscious decision-making has prompted some judges  to avoid partisan thinking even when acting in their private capacities. Justice Harlan, for instance, is reported to have stopped voting in elections after becoming a judge: "It was wrong, he thought, for a member of the Supreme Court to think of himself as a Democrat or Republican, even for the minute it took to cast a ballot.”

Justice Harlan's extreme approach to judicial neutrality points toward another, perhaps less conventional way to understand the Justices' retirement decisions. Each Justice could view her seat as not her own in any sense, but only the people's. On that view, each Justice should, in her official capacity, be prepared to accept any replacement whom the people constitutionally select.  After all, each Justice holds her own seat only due to that very constitutional process. Respect for one's successor is like respect for one's colleagues, who likewise have constitutional authority because of the confirmation process. This approach wouldn't entirely preclude timing considerations. For example, a Justice could still avoid retiring at a time of war, election, or other crisis. But it would rule out considerations about who would be selected, which quickly blur into raw politics. Justice Ginsburg seemed to be channeling this conception when she emphasized her desire to work "as long as I can do the job full steam," regardless of what that would mean for her eventual successor.

In outlining this alternative conception of judicial retirement, I may have exposed my own naiveté. The Justices are of course flesh and blood people who are partly the product of politics, and it would be a mistake to assume otherwise. But I still suspect that many people would be surprised--and sorry--to find out that my possibly naive conception is so contrary to actual practice.

The above is cross-posted from Re's Judicata.

Posted by Richard M. Re on October 21, 2014 at 01:41 AM | Permalink


Well here's the problem: Scalia: "I would not like to be replaced by someone who immediately sets about undoing everything that I've tried to do for 25 years..." Judges should not be "trying" to do anything other than rule correctly in the cases in front of them. Of course there are politics in judging, but the more brazenly political the Supreme Court becomes, the less legitimate it becomes institutionally.

Posted by: Adam | Oct 24, 2014 9:06:41 AM

Ginsburg doesn't want to retire for purely personal reasons.

Clearly, if her primary aim were to be replaced by a like-minded successor, she would have retired by now.

There has been a Democratic President and a Democratic Senate for the last six years. That combination is rare. Ginsburg has no reason to expect it to happen again in her lifetime.

Posted by: dw | Oct 22, 2014 12:47:15 PM

Background's important, but Sotomayor and Kagan, while not sharing her background, are pretty well "in line with [her] values" (quoting from the comment above). Vastly more so than whomever a Republican President might appoint.

Posted by: Anon | Oct 22, 2014 10:46:01 AM

I don't read Justice Ginsburg's comments as a reflection of who she personally would like to see appointed to the Court. I see them more as a pointed challenge to those calling for her retirement. I think she is saying to them, "You want me to retire so that President Obama will appoint someone in line with your (and, by extension, my) values to the Court? I'm here to tell you that that's not going to happen in this political climate, so it makes no difference if I retire right now or when a Republican is in the White House." Justice Ginsburg has said herself that a lawyer with a background similar to hers (extensive work with the ACLU, a women's rights pioneer, etc.) would have no chance in getting confirmed to the Court today. As the commenter above pointed out, can anyone realistically imagine another Thurgood Marshall being appointed to the Court anytime in the foreseeable future? I think Justice Ginsburg's recent comments are simply in line with her prior way of thinking about the issue, albeit with a slight rhetorical flare that only appears to imbue her point of view with political calculations.

Posted by: Cris | Oct 22, 2014 10:24:33 AM

I think the main post misses something important here (that the comment from Vinminen begins to uncover): Justice Ginsburg's reference to the fact that President Obama could not confirm another justice of her stripes anyway comes as a _defense_ to charges that she should time her stepping down for political/partisan reasons. RBG doesn't want to do it -- she doesn't want to time her departure politically. She wants to stick around.

And part of her argument for doing so is that she is NOT just a "generic Democratic-President-Appointed Justice"; it is not simply a matter of who's on the side of the 5 and who's on the side of the 4 in the great divide on the Court that all of us are so fixated on. Rather, there are real differences among the individual justices, rooted in part in the experiences they bring to the Court. Because our politics has become so much more toxic and deeply partisan, and the Senate so much more aggressive about nominations, than was true at the time of Ginsburg's own appointment, it is probably no longer possible today for a Democratic president to nominate someone whose profile -- ACLU litigator, women's rights pioneer -- looks anything like hers. I think that's her point, and it's also true. And in a way it is trying to get us to STOP looking at everything through the narrow, 5-4 partisan lens. What RBG is saying is that there's more to it than that divide, which maps onto the parties; and at the moment, it is not possible to replace her with anyone who is anything like her. For instance, imagine trying to confirm Thurgood Marshall today. It is totally unthinkable. He would get almost no Republican Senate votes. Debo Adegbile of LDF could not even get confirmed to a post at DOJ, in one of the more scandalous confirmation episodes of the past few years, notable only because the President actually tried to put him up before giving up on it. It is in that context that I think it reasonable for RBG to conclude that she might as well stick around, because whichever president replaces her, it will not be possible to have someone like her on the court again for some time.

Posted by: Joey | Oct 22, 2014 1:36:10 AM

"it would be unlikely to happen"

If she retired in June 2014, e.g., "Obama's pick" would be confirmed -- the Republicans are not going to block a 9th slot for two years and a half years. I don't think they would do it for 1.5 years if she retired June 2015. So, disagree with her on the "political reality."

I would make clear, however, she is sticking around if anything underlines "political calculations" are not her general motivation. I sorta think she believes Hillary Clinton has a good chance of winning in '16. Doubt she has no desire to use political calculations. Not sure if she is that pure of heart. But, she is primarily sticking around since she feels she can still do the job.

Her (at least somewhat misguided) opinion on the politics does make that easier for her.

Posted by: Joe | Oct 21, 2014 9:42:26 PM

I think it's unfair to RBG to insinuate her comments about the likelihood she would be replaced by someone like her are somehow readily volunteered insight into a political calculation on her part. Those comments were made in answer to a charge by the political sphere that she should retire now to ensure her replacement will be Obama's pick. She's merely acknowledging the political reality that if that is what those people want, she believes it would be unlikely to happen. That says nothing about her official position on retirement. Certainly anyone can guess that the Justices want someone to replace them who will not set about undoing their work on the bench, but there is no evidence of that being the sole determinant for when any of them will retire. To insinuate otherwise is to treat them as inhuman, discounting their likely consideration of their health, family, and self-perceived competence in fulfilling their oath. I disagree with RBG and many on her wing of the Court on many issues, but I've never seen the slightest hint that she views her responsibilities in purely political terms.

Posted by: Vinminen | Oct 21, 2014 7:25:52 PM

I second the concern for RBG's sense of self-importance of a sort that usually is alleged against Justice Kennedy.

She has every right, and justices will continue to be motivated by such things as they always did, to retire when she seems fit in part motivated by political/partisan inclinations. Also, I find self-importance the deciding factor here in her analysis, since resigning sooner than later overall very well will get someone she would rather have on the Court.

Finally, concerns about blocking a nominee seem a bit weak. Obama will pick some pretty safe choice & the last person blocked was Bork, who had a ton of baggage. Filibusters last worked over forty years ago here against someone else that had a lot of baggage & for a Chief Justice slot at that (Fortas).

I think as a matter of good judgment, not letting purely partisan grounds motivate your retirement here is reasonable. But, if we want to actually make it stick, we will have to have set terms. The two term norm for Presidents for years until FDR shows it is theoretically possible, I guess.

Posted by: Joe | Oct 21, 2014 5:11:59 PM

A system in which appointments to the Nation's highest court are invariably based on either (a) a political calculation by current members of the Court, or (b) the random chance of illness, death, or functional incapacitation should not be anyone's first-best. It seems obvious (in the extreme?) that changes in the Court's membership should be regularized, either through the 18-year term limit proposals that have been suggested by many or through some variation on those proposals.

In the absence of such a systemic change, however, we should expect political calculation to be the norm in retirement decisions. Even if some individual Justice or group of Justices thought otherwise, there would be a serious collective action problem. If Justice Ginsburg eschews political calculation but Justice Scalia does not (or vice versa), it can skew the Court in ways that particular Justices have an incentive--and perhaps even a duty--not to facilitate.

Posted by: JG | Oct 21, 2014 1:54:29 PM

It is partisan to be sure but what concerns me is Ginsberg's quote that the person appointed would not be someone "I would like to see on the court." That may go beyond partisan to an excessive level of self-importance.

Posted by: Jeff Harrison | Oct 21, 2014 1:29:21 PM

"Yet this contingent relationship between ideology and politics is fraught, since it can easily be mistaken for out-and-out partisanship."

We just saw SCOTUS overturn an Alabama law limiting election contributions, claiming all sorts of things about the freedom of political participation. The Texas voter suppression act was not stayed, because it'd cause too much confusion so close to the election.

SCOTUS is not as partisan as the parties, but it is partisan.

Posted by: Barry | Oct 21, 2014 8:40:26 AM

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