Timed Retirements and the Balance of the Court

In an op-ed in the USA Today on the importance of the Presidential election for the future of the Supreme Court, Gregg Nunziata writes that “[t]he next president could fill as many as three, perhaps more, Supreme Court vacancies.” That’s certainly true. It’s interesting to note, though, that the fact that Justices in recent years generally try to time their resignations makes it harder for a President to shift the Court’s ideological balance than you might expect based on the typical rate of vacancies. There’s lots of evidence of Justices trying to time their retirements so that they are replaced by a President whose nominee will more closely match their views. Justice Scalia made this point forthrightly in a recent interview: “Of course I would not like to be replaced by somebody who sets out immediately to undo” his work, he said.

If the Presidency alternates reasonably often between Republicans and Democrats, and the Justices only step down when a President of their party is in office, then each side will replenish its side with younger Justices without shifting the balance of the Court in a major way. Every Justice has an impact, of course. But the overall balance of the Court will tend to shift in a substantial way only when a swing Justice retires, an unexpected illness occurs, or one party manages to control the Presidency for long enough that the Justices on the other side can’t pick a friendly Administration in which to resign. To be clear, I’m not saying I approve of this, and I don’t like the implication that many Justices see themselves as being on a “side” in the sense that one party’s nominees are likely to view the world like they do while the other party’s nominees won’t. But it does seem to be the reality. And if it’s a reality, it suggests that it’s harder to shift the balance of the Court than it otherwise may seem.

UPDATE: I should add that for this (and other) reasons, I favor a constitutional amendment to limit Justices to 18 year terms. That way each President gets 2 vacancies to fill every term — one every two years — and the timing can’t be gamed by sitting Justices.