Supreme Court Report
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 first months of President Donald Trump’s administration. The rumors went unfulfilled 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 toward Trump and has made it clear in multiple public appearances this year that she has no intention of retiring as long as she can perform the job of justice “full steam.” Justice Stephen G. Breyer turns 80 in August, but like Ginsburg was nominated by President Bill Clinton, a Democrat. As part of the court’s liberal bloc on many issues, he seems to be disinclined to retire imminently.
Kennedy, meanwhile, is known to have some desire to step down and enjoy some golden years, perhaps to devote to interests such as improving civics education in the schools. He was nominated by President Ronald Reagan in 1987 after the defeat of Robert H. Bork and the withdrawal of Douglas Ginsburg for the seat of Justice Lewis F. Powell Jr. Kennedy joined the high court on Feb. 18, 1988, an anniversary recently acknowledged from the bench by Chief Justice John G. Roberts Jr.
There is no shortage of settings in which the retirement question is being watched with keen interest—the White House, Senate and the chambers of the federal appeals court judges who make up most spots on the official and unofficial short lists for filling a high court vacancy.
Another place where Supreme Court retirements are being studied is in the ivory tower. The retirement decisions or nondecisions by the justices have been studied by a surprising number of political scientists and other researchers.
“It’s a subject of perpetual interest, and it will be as long as we have a powerful Supreme Court full of elderly justices,” says Ross M. Stolzenberg, a professor of sociology at the University of Chicago who has written or co-authored two studies about justices’ departures from the court. This includes not just by retirement but by death; Stolzenberg also has studied the justices’ mortality rates after retirement.
If Kennedy decides to retire under Trump, he would be following a long tradition of justices consciously leaving the court under a president of the same party who appointed them.
A more complicated question is whether justices also seek to time their retirements with political or ideological goals in mind—and whether they have been successful.
The conclusion of the most recent study is that justices have not been all that successful in bringing about an ideologically like-minded successor—a new member of the court who shares their judicial or political outlook.
“Justices’ political retirement goals have often turned out to be wishful thinking,” wrote Christine Kexel Chabot, a scholar in residence at the Loyola University Chicago School of Law, in Do Justices Time Their Retirements Politically?—published in draft form in February.
“Some justices found that they were relatively far removed from ideologies of party leaders (and potential successors) by the time they retired, and justices who timed their retirements politically had limited success in obtaining like-minded replacements.”
Print and initial online versions of “Leaving the Bench,” May, should have stated that the Republican Party controlled the Senate during two years of Barack Obama’s eight-year presidency.
The Journal regrets the error.
This article was published in the May 2018 issue of the ABA Journal with the title “Leaving the Bench: Speculation swirls regarding Supreme Court retirements.”