The Timing of Supreme Court Retirements:
Over at SCOTUSblog, Tom Goldstein has a long post speculating on how Justice Ginsburg's illness might impact the decisions of other Justices to retire. The gist of the post is that "the retirement decisions of the Justices are inevitably tied together to some extent," and that other Justices might be more inclined to retire sooner if they think that Justice Ginsburg's illness might force her to retire later in the Obama Presidency. Why? Goldstein suggests that "a practice has developed" by which Justices try not to retire the same year "to avoid the complications of multiple Supreme Court confirmation hearings in a single summer." He writes:
First, I'm not sure "a practice has developed" that Justices try to space out retirements. True, it did happen with Justice O'Connor, at least as best we can tell. But I don't recall hearing other examples of it. (If you know of other examples, please let me know and I'll update the post.) Second, even if that is a general preference, timing a retirement around predictions of a colleague's declining health is pretty difficult. We learned that from Justice O'Connor's example: O'Connor resigned July 1, 2005, apparently in order to space out her retirement and Rehnquist's, but Chief Justice Rehnquist ended up passing away just two months later. Third, the Senate recently went through two Supreme Court confirmation hearings a few months apart, and the system worked just fine. Fourth, the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates (assuming no major surprises emerge in the confirmation process). That seems just as true if two vacancies arise at the same time.
For all these reasons, I tend to doubt that Justice Ginsburg's health will have any impact on what the other Justices are thinking in terms of their own retirements. It's certainly possible — as I said, these are highly personal decisions of a few specific people who have never done this before, so anything is possible. But I tend to doubt it.
UPDATE: A reader who follows the Supreme Court very closely tells me that there is in fact evidence that the Justices have talked about this issue in the past, and that there is a general preference for spacing out retirements if possible.
Though precise accounts vary, it is understood that Justice O'Connor retired a year earlier than she otherwise was likely to because it seemed likely that Chief Justice Rehnquist would retire the following summer as a result of his thyroid cancer. A similar phenomenon may present itself here. The greater the odds that Justice Ginsburg will retire in 2010 or 2011, the greater the parallel incentive for Justice Stevens or Justice Souter to leave this summer.Goldstein qualifies his suggestion with a lot of caveats. The most important is that we just don't know what Justices are going to do: These are highly personal decisions of a few specific people who have never done this before, so it's not something you can reason out from first principles. Even so, I'm skeptical about the basic dynamic Goldstein suggests.
First, I'm not sure "a practice has developed" that Justices try to space out retirements. True, it did happen with Justice O'Connor, at least as best we can tell. But I don't recall hearing other examples of it. (If you know of other examples, please let me know and I'll update the post.) Second, even if that is a general preference, timing a retirement around predictions of a colleague's declining health is pretty difficult. We learned that from Justice O'Connor's example: O'Connor resigned July 1, 2005, apparently in order to space out her retirement and Rehnquist's, but Chief Justice Rehnquist ended up passing away just two months later. Third, the Senate recently went through two Supreme Court confirmation hearings a few months apart, and the system worked just fine. Fourth, the Senate is firmly in Democratic hands, and it would likely confirm pretty much anyone Obama nominates (assuming no major surprises emerge in the confirmation process). That seems just as true if two vacancies arise at the same time.
For all these reasons, I tend to doubt that Justice Ginsburg's health will have any impact on what the other Justices are thinking in terms of their own retirements. It's certainly possible — as I said, these are highly personal decisions of a few specific people who have never done this before, so anything is possible. But I tend to doubt it.
UPDATE: A reader who follows the Supreme Court very closely tells me that there is in fact evidence that the Justices have talked about this issue in the past, and that there is a general preference for spacing out retirements if possible.