Posted by Orin Kerr:
The Timing of Supreme Court Retirements:
http://volokh.com/archives/archive_2009_02_08-2009_02_14.shtml#1234166313
Over at [1]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:
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.
References
1. http://www.scotusblog.com/wp/linked-retirements-and-the-summer-of-2009/
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