There is a possibility that one or more Supreme Court Justices could retire during President Obama’s administration. Six Justices are at least 70 years old. The Court’s oldest Justice is John Paul Stevens, 88. And Ruth Bader Ginsburg, 75, underwent surgery for pancreatic cancer last week to remove a one centimeter tumor. (She currently intends to return to the court in time for oral arguments beginning Feb. 23.) Will these two liberal justices or the two remaining Reagan appointees, Anthony Kennedy and Antonin Scalia, both 72, try to time their retirement to enable party allies to appoint like-minded replacements?
Supreme Court Justices are free to stay in office as long as they like. Some Justices have, indeed, timed their retirement to insure a compatible successor. But a new analysis by Terri Peretti and Alan Rozzi, two political scientists at Santa Clara University, found that a Supreme Court Justice’s retirement decision is motivated more by their sense of power and position within the Court, than by the current political climate. They write:
“Judges are influenced in their retirement decisions by their sense of importance and utility on the Court, a critical component of the self-esteem, prestige, and professional satisfaction they naturally seek to safeguard and enhance. Thus, 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 doctrine… Although our evidence indicates that Supreme Court Justices are not strategically retiring in the modern era, it does not prove that they neither desire nor try to do so, as some anecdotal evidence suggests. Timing their retirement to insure an ideologically-suitable replacement may in fact be a goal of Supreme Court Justices. However, that goal appears to be secondary to other objectives such as continuing to exercise power and preserving their ideological and leadership roles on the Court. Additionally, Justices may try to retire strategically but fail.”
Pensions also play a role in retirement timing. Congress began providing retirement benefits to Supreme Court Justices in 1869, allowing judges age 70 or older with 10 years of federal judicial service to continue receiving their existing salary after leaving the bench. Pension eligibility was eased in 1954, allowing federal judges to retire with their full salary at age 65 with 15 years of service. In 1984, the retirement rules for judges were further relaxed to a minimum requirement of 10 years of service as long as the sum of the judge’s age and years of service totaled 80. Before Supreme Court Justices were offered retirement benefits, some stayed at the bench partially for financial reasons, even when they experienced severe physical and mental decline.