Strategic thinking on the Court: The decision to retire

by Lee Sigelman on June 4, 2009 · 9 comments

in Judicial

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On May 1, 2009, Justice David Souter announced his intention to retire from the Supreme Court. The timing of Souter’s departure has raised anew the question of strategic departures from the Court. Because members of the nation’s highest court can retire whenever they choose, or not at all, their departures are not ordained by fixed terms, term limits, being voted out of office, or a host of other factors that play into other public officials’ thinking about whether the time has come to hang it up. A potential element in their thinking, then, is how their retirement is likely to affect the ideological balance on the Court. Thus, members of the Court’s conservative bloc may be determined to outlast a liberal president and a Democrat-dominated Senate in hopes that their successors will not be able to undo what they have done on the Court; and liberal justices who are considering retirement may decide that the time is ripe when the Democrats control the White House and the Senate.

Such, at any rate, is the conventional wisdom. But how accurate is it? At least one justice left no doubt that his thinking about whether to stay on the Court was influenced by precisely such considerations. Chief Justice William Howard Taft, pondering retirement, wrote:

I am older and slower and less acute and more confused. However, as long as things continue as they are, and I am able to answer in my place, I must stay on the Court in order to prevent the Bolsheviki from getting control.

That quote is contained in a study by Kjersten Nelson and Eve Ringsmuth that appears in the May 2009 issue of American Politics Research (gated; abstract here). In that study, Nelson and Ringsmuth present statistical tests of the notions that, all else equal, a justice’s likelihood of retiring in a given year is inversely related to his or her ideological distance from the president and the Senate. Analyzing annual data from 1947 through 2004 (a period in which there were 19 retirements), Nelson and Ringsmuth find that ideological distance from the justice to the median senator (and, for that matter, from the justice to the Senate’s filibuster pivot) did lessen the probability that the justice would retire. However, no parallel relationship emerged for the justice and the president. The authors don’t offer any compelling explanation of why distance from justice to president doesn’t seem to matter. They do note that presidents often anticipate Senate reactions to their nominations rather than acting independently, but there’s many an unexamined step between that tendency and justices’ retirement decisions. In any event, the link that Nelson and Ringsmuth do observe between the ideological composition of the Senate and justices’ ideological positions provides suggestive evidence that Chief Justice Taft was not alone in thinking strategically about the time had come to retire.

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