Legal News

A Look at Supreme Court Justice Retirements

By Ashby Jones

When it comes to resignations, Supreme Court justices are a funny lot. The conventional wisdom dictates that liberal justices eyeballing retirement will hold on until a Democrat is in office, and that the reverse is true for conservatives and Republican presidents.

In truth, however, it doesn’t always play out like that. Cases in point: Thurgood Marshall and William Brennan, two famously liberal justices who resigned while George H.W. Bush was in office. Nixon appointees Lewis Powell and Harry Blackmun each stepped down during Bill Clinton’s tenure (though neither was known as a firebrand conservative).

The National Law Journal’s Marcia Coyle, who we know primarily for her great interviews on Jim Lehrer every so often, weighs in today with a story on a study that largely supports the view that justices don’t typically consider partisanship when deciding when to resign. Writes Coyle: “When it comes to retirement decisions, justices care more about power than party and policy, according to a new empirical study.”

The study, written by Terri Peretti and Alan Rozzi and called “Modern Departures from the U.S. Supreme Court: Party, Pensions, or Power” charted all the Scotus departures from 1953 through 2006. And yes, the authors conclude that justices role on the court, and the power they wield, is a better predictor of their retirement plans than is the party affiliation of the current president. “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 policy,” they concluded.

A quick look at the historical record, the authors found, indicates that, in the roughly five decades from 1954 to 2006, only 11 of the 22 justices leaving the bench (50%) did so under a same-party president, and 13 of 22 (59%) were replaced by same-party successors.

“If Supreme Court justices wish to provide co-partisan presidents with the opportunity to replace them with co-partisan successors, they are failing nearly half of the time,” they said.

Law Blog (Supremely) Cool Internet Tool of the Day: Speaking of The Nine and new presidents, check out this zoomable photo. Can you find the Supremes? (It’s like a fairly easy version of Where’s Waldo, but much much cooler. Nb: give it a minute to load before trying to zoom.)

Photo: AP

Full post as published by Law Blog - WSJ.com on February 03, 2009 (boomark / email).