Academic highlight: Chabot on the timing of justices’ retirements
on Apr 6, 2018 at 9:49 am
It’s April, which means it’s time to start speculating about which justices might announce their retirements at the end of the term. Many assume that decision is heavily influenced by a justice’s desire to be replaced by a like-minded jurist. But a recent study by Christine Kexel Chabot finds that justices frequently cannot time their retirements to coincide with ideologically compatible presidents, and that many others choose not to do so even though they could. Even more interesting, Chabot found that those justices who do retire strategically are often disappointed by their replacements. Chabot concludes that “[l]imited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.”
A justice’s greatest impact on the Supreme Court may come not from her decisions in individual cases, but from the timing of her retirement. The conventional wisdom holds that the justices choose to retire when an ideologically proximate president holds office, cementing their legacy and perpetuating their influence over the court long after they leave the bench. Indeed, the justices’ control over the timing of their retirements is a much-criticized feature of life tenure.
But Chabot’s study of Supreme Court justices’ retirements since 1954 undermines that view, contributing to the ongoing debate among legal scholars over the role of politics in the timing of judicial retirements. Chabot found that half of the 22 retirements over the last 64 years were not politically timed. Many justices are compelled to retire due to serious health problems. For example, Justice William Douglas suffered a stroke, forcing him to step down while Gerald Ford was president – a result he had hoped to avoid. (At one point Douglas declared: “Even if I’m only half alive, I can still cast a liberal vote.”) In the case of other justices, the presidency and Senate were controlled by ideologically distant political actors during the years leading up to their retirement, so they had no choice in the matter. Chabot explains that timing a retirement is particularly difficult for justices in the ideological center, such as Justices Sandra Day O’Connor and Anthony Kennedy, because their votes are not typical of the judges preferred by either the Democratic or Republican parties.
Chabot found that about half of the justices who retired since 1954 appeared to have timed their retirements to occur when ideologically compatible presidents were in office. But even so, they were often disappointed by the results. She concluded that “on average, voluntary retirees did not obtain significantly more like-minded successors than Justices who left involuntarily.”
Chabot’s surprising findings are due in part to her nuanced analysis of the preferences of the retiring justice. Some previous studies of judicial retirements conflated judicial ideology with the party of the appointing president. If a justice appointed by a Republican president retired during a Republican presidency, the justice was assumed to have achieved her goal of retiring during the term of an ideologically compatible president. But Chabot argues that a justice’s voting record is a more accurate measure of ideology than the appointing president’s political party. For example, Justice David Souter was appointed by President George H.W. Bush, a Republican, but he chose to retire when a Democrat was president and Democrats controlled the Senate – a choice that makes sense only when looking at Souter’s more liberal voting record. By the same token, O’Connor, appointed by a Republican, retired while a Republican was president. But her replacement, Justice Samuel Alito, is ideologically distant from her, and she has reportedly expressed disappointment in his performance.
Chabot acknowledges that her study focused on a small number of justices, and that the results might differ over time. She notes that “[i]f enough Justices voluntarily retire to ideologically proximate presidents, there is reason to think they would average significantly better outcomes than Justices who leave involuntarily.” Nonetheless, her study shows that it is difficult for a justice to time his retirement and that, even when a justice succeeds in doing so, his replacement might not vote as he would prefer. In other words, like presidents, retiring justices can find themselves unhappily surprised by the voting records of their successors.