Why Justices Retire

By Yalof, David | Judicature, July/August 2004 | Go to article overview
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Why Justices Retire

Yalof, David, Judicature

Why justices retire Deciding to Leave: The Politics of Retirement from the United States Supreme Court, by Artemus Ward. State University of New York Press. 2003. 344 pages. $86.50. $29.95 (paperback).

It's been more than a decade since a vacancy last arose on the United States Supreme Court, and court watchers have grown antsy waiting lor the next justice to retire. Considerable energy has been poured into the ongoing "retirement watch," with journalists and other observers maintaining a careful lookout for any sudden movements or actions by the justices that might give an indication that a retirement is imminent.

Such efforts are rarely rewarded. In 2000, Justice Sandra Day O'Connor's supposed election-night remark that Al Gore's reported "victory" in Florida was "terrible" sel off a wave of speculation that she was already making plans to retire early in George W. Rush's first presidential term. More than two years later, when William Rehnquist paid an unpublici/ecl visit to the White House in December of 2003, legal insiders guessed that the chief justice must have been meeting with President Bush to discuss his desire- to leave the Court. Of course both of those events might also have been quite innocent. In fact neither O'Connor or Rehnquist chose to retire during the first three years of the Bush presidency, giving credence to the denials that were ottered in the wake of such rank speculation. Still, with the stakes so high, it's tough to imagine the media in particular letting up on this informal stakeout any time soon.

In Desiding to Leave, political scientist Artcmus Ward has done this growing community of retirement watchers a service by chronicling the complete political history of retirements from the United States Supreme Court. Ward's book provides a welcome dose of historical perspective to a subject that tends to receive little substantive coverage after the fact. Normally, as soon as a High Court vacancy is announced all eyes tend to focus forward to the nomination and confirmation battles that follow. Lost arc the behind-the-scene considerations that inform those crucial retirement decisions in the first place.

The author persuasively argues that the single most important factor for justices deciding to leave the Court has been the presence of a formal retirement provision with generous benefits. Indeed, as retirement benefits for federal jurists have been enacted and expanded over the years, a much greater percentage of justices have chosen to leave on their own initiative, before illness (or in some cases, death) forecloses the possibility of continued service. One modern trend seems to bear (his point out: whereas death was the most common means of justices leaving the court up until the mid-part of the twentieth century, since 1956 every single departingjustice has left by retirement or resignation.

The benefits of such a development in the retirement process are obvious: Long-serving justices are no longer forced to suffer their way through strenuous court duties simply because they need the income. Embarrassing instances in which ailing justices well past their prime must essentially be "nudged" off the court by unsettled colleagues seem less likely now (although in 1975 Justice William O. Douglas stubbornly grasped onto his judicial seat even after suffering a debilitating stroke, much to the chagrin of his brethren).

Still, what Ward does so effectively in his book is to spell out the disadvantages of the voluntary retirement mechanism that prevails today. According to Ward, "partisanship" (his word for nakedly "political" or "ideological" interests) has now become the chief organizing factor for departing justices who attempt to strategically time their retirements to coincide with "co-partisan" or "like-minded" presidents. Consider the case of Justice John Paul Stevens, who has been eligible for retirement with a full salary and benefits since 1985, but continues to serve into his eighties.

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