The Volokh Conspiracy

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Volokh Conspiracy

Politics and Supreme Court retirements


Richard Re has another great post, this one on whether Supreme Court justices should think about politics in deciding how long to hold their offices, and how they should talk about those thoughts. Here is a key observation:

On the one hand, if the Justices are really thinking about political calculations, and if it is truly naive to expect anything else from them, then it would probably be better for the Justices to be open about that. Doing so might prompt a political response, such as a movement toward judicial term limits. Or perhaps it wouldn't, and the public would be just as happy to let things go along as they have-with each Justice quietly timing her retirement in order to advance the goals of one party or another, but only as a means for promoting particular visions of the law. Either way, the people would be better able to make an informed choice about how things actually work at the Court. On this view, Justice Ginsburg has recently done a great service in drawing attention to what seems like a widespread (though perhaps not universal) pattern of thinking on the Court.

On the other hand, it is hard to mark the boundary between contingently thinking in political terms and just thinking in political terms. This applies both to the Justices and to the public. Every time that Justice Ginsburg thinks about who can and can't get nominated and confirmed, she gets a little more used to thinking of President Obama as her friend and the Senate Republicans as her adversaries. And every time that Justice Ginsburg says those thoughts in public, members of the public get used to thinking of Justice Ginsburg as having that partisan orientation. It is hard work to remind yourself: "This partisan alliance is only contingent."

One commonly-proposed solution to the "problem" of political retirements is to have all justices appointed to a long fixed term, with no reappointments and with any premature vacancies replaced with an appointee to fill out the remaining term. This is not proposed by Re, but it's mentioned by a commenter to his post.

Even on the assumption that there is a problem, I'm a skeptic about these solutions. The longer the term, the more that retirement calculations are still necessary (an ailing justice with 10 years left in the term still has to decide whether to retire). And the shorter the terms, the more questions about what the justices will do after retirement, whether they will underinvest in their judicial reputation or the institution as a whole, and so on.

To put the point in game theory terms, the variable-iteration game has more cooperation and less defection than a fixed-iteration games. In institutional terms, life tenure means no lame duck period, and I suspect it leads to justices who care a lot about the court and about doing a good job. Maintaining that norm is sufficiently important that I'm skeptical of reforms that might damage it.