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.