How do US Supreme Court justices often try to time their retirement?

Answer 1

Common wisdom suggests US Supreme Court justices approaching retirement age may try to time their retirement to occur during a Presidential administration likely to result in appointment of a justice with compatible ideology or partisan ties. Ideologically and politically motivated strategic retirement most often occurs early in the first term of a Presidential administration that supports the retiring justice's jurisprudence. A liberal justice is more likely to retire during a Democratic administration, while a conservative is more likely to retire during a Republican administration. He or she would also be inclined to consider the partisan power structure of the Senate when making a decision. It is logical to assume justices may choose to retire when a potential successor would extend his or her policy views.

While this motivation has been supported by numerous political scientists' empirical research, a new analysis by Terri Peretti and Alan Rozzi of Santa Clara University, indicates a more important consideration may be a justice's perception of his or her importance and utility to the Court.

According to Peretti and Rozzi's Working Paper, "Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power?" justices who retired between 1953 and 2007 were less likely to time their decision based on partisan politics than more personal factors:

"Judges are influenced in their retirement decisions by their sense of importance and utility on the Court, a critical component of the self-esteem, prestige, and professional satisfaction they naturally seek to safeguard and enhance. Thus, we find that justices are less inclined to leave the bench when fulfilling an ideological mission by "fighting the good fight" from the wings or when steering the Court by writing majority opinions that shape legal doctrine… Although our evidence indicates that Supreme Court Justices are not strategically retiring in the modern era, it does not prove that they neither desire nor try to do so, as some anecdotal evidence suggests. Timing their retirement to insure an ideologically-suitable replacement may in fact be a goal of Supreme Court Justices. However, that goal appears to be secondary to other objectives such as continuing to exercise power and preserving their ideological and leadership roles on the Court. Additionally, Justices may try to retire strategically but fail."

Another mitigating factor is the availability of retirement benefits, which Congress allocated via the Judiciary Act of 1869. One provision of the Act allows justices who attain age 70 with at least 10 years of federal judicial service to retire at full salary and benefits.

Prior to 1900, approximately 66% of justices died in office, despite declining health or mental deterioration. During the 20th century, 70% resigned or retired, most eligible for full benefits. Chief Justice Rehnquist, who died in 2005, was the first Supreme Court justice to die in office over the past 50 years.

Rozzi, Alan and Peretti, Terri L., Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power? (July 17, 2009).

For more information, see Related Questions and Related Links, below. The full text version of Rozzi and Peretti's analysis is available as a free download from the Social Science Research Network (see below).