There is a perennial fascination that flows with every new presidential administration in recent decades: when will the president get to fill a Supreme Court vacancy, and whose seat will it be?
In Washington, this speculation is already well underway.
With divisive legal questions often decided narrowly by one or two votes, questions about who might be leaving or joining the Court are high-stakes issues for liberals and conservatives alike. How the election or reelection of the president shapes that process is a critical factor.
The dynamics and politics of the retirement and selection processes should be of interest to all students of the Supreme Court. The impact on the Court’s decisions and changes in the Court’s directions cut across every facet of law study.
In the retirement sweepstakes, the spotlight shines most brightly on Justice Ruth Bader Ginsburg. At seventy-nine, she is the Court’s oldest member. By the fall of 2013, when the Court will begin its next Term, she will have marked her eightieth birthday and twenty years on the Court. Moreover, as a solid member of the Court’s more liberal wing and as an appointee of Bill Clinton, a Democrat, the conventional wisdom is that she very likely would want to give the reelected President Obama the chance to appoint her successor.
But Justice Ginsburg illustrates some of the fundamental problems with the important game of Supreme Court vacancy sweepstakes. First, she likes the job and has no burning desire to give it up. Second, although she looks frail and has fought colon cancer, by all accounts she is in good health and is functioning effectively at the Court. In short, she believes she has more to accomplish as a Justice. Indeed, she has said she would like to follow the model of Justice Brandeis and serve until the age of eighty-two.
The decision to leave the Supreme Court is not always as predictable as public perceptions and the political process may have it. When the Court is viewed through a political lens, it is widely assumed that Justices will elect to have their successors chosen by a president of the same political party as the president that appointed them – so Republican-appointed Justices will retire when Republicans occupy the White House, and Democrat-appointed Justices will leave when Democrats hold the presidency.
But the decision to leave the Court is often not as overtly political as it may seem or as political activists would like it to be. Age and health may intervene. Justices may be unwilling to give up their seats simply because doing so would serve the political interests of their ideological admirers. A Justice’s ideology may also make retirement more compatible with a particular time frame.
Consider some examples that may offer lessons for the next few years. Perhaps the two most intriguing case studies are Justices William Brennan and Thurgood Marshall. The two men, the anchors of the Court’s liberal wing in the 1970s and 1980s, were urged by some liberal commentators to retire in the late 1970s to give Jimmy Carter, a Democrat, the chance to appoint their successors.
Neither was ready to retire. Carter never had the chance to make a Supreme Court appointment, and Brennan and Marshall found themselves staring at twelve consecutive years of Republicans in the White House. Although the two were the most unlikely candidates to allow conservative Republicans to appoint their successors, the upshot was that both retired for health reasons under the George H.W. Bush – Brennan in 1990 and Marshall in 1991. From a political or ideological standpoint, neither man acted strategically about the choice to leave the Court.
In contrast, Justices Harry Blackmun in 1993 and Byron White in 1994 did appear to act strategically to give President Clinton the chance to choose their successors. Although Blackmun had been appointed to the Court by Republican Richard Nixon, he had become much more compatible with the Court’s liberal wing by the time he retired. And White was nominated by Democrat John Kennedy. Justices David Souter in 2009 and John Paul Stevens in 2010 may also have made strategic choices about when to leave; although both men were appointed by Republican presidents, at retirement both were more comfortable with a liberal approach on the Court that was consistent with allowing President Obama to replace them.
Justice Sandra Day O’Connor, who left the Court in 2006, may have acted for mixed motives. She left the bench ostensibly to care for her husband, John, who suffered from Alzheimer’s disease, but she also left during the tenure of Republican George W. Bush, reflecting a strategic compability in addition to a personal need.
Fast forward to today. Although Justice Ginsburg has shared some insight about her future, some liberal commentators will undoubtedly begin to urge her to step down sooner rather than later to make sure President Obama has time to fill the seat. Indeed, Harvard Law School professor Randall Kennedy pressed that view well before the elections in an April 2011 column for The New Republic.
One focus of discussion is likely to be pressing her to step down before the 2014 midterm elections. The rationale would be that the party in the White House has lost ground in the U.S. Senate in six of the last nine midterm elections, going back to 1978. Liberal groups may be expected to press the case that if Ginsburg sticks to her plan to stay until the summer of 2015 (when she would be eighty-two), and if the Democrats lose ground in the Senate in 2014, President Obama’s choices may be substantially limited by the close balance in the Senate.
This argument is similar to the one made unsuccessfully to Justices Brennan and Marshall in the late 1970s. Justice Stevens also had similar entreaties in the 1990s from liberals who hoped that President Clinton would have the chance to select his successor. Like Justices Brennan and Marshall, Justice Stevens paid little heed to the plea and served to the end of the next decade.
Justice Ginsburg is by no means the only target of the current sweepstakes. Both Justices Antonin Scalia and Anthony Kennedy are seventy-six years old. By the summer of 2017 – the end of the Court Term after the next president takes office – Justice Scalia will have turned eighty-one, and Justice Kennedy will be just weeks away from doing the same. Neither the conservative Justice Scalia nor the Court’s swing vote, Justice Kennedy, would be likely to choose voluntarily to allow President Obama to appoint their successors. But will they elect to – and be able to – serve for at least another four-and-a-half years? That is impossible to know, of course.
A final player in the sweepstakes is Justice Stephen Breyer, seventy-four, also a member of the more liberal wing of the Court. He may have to consider some of the same calculations as Justice Ginsburg: how to balance the fact that he likes the job and remains in good health with his age and a focus on who will get to appoint his successor. Indeed, in his column last year, Randall Kennedy suggested that Justice Breyer should join Justice Ginsburg in stepping down to give President Obama the chance to fill the vacancy.
If President Obama were able to replace either Justice Kennedy or Justice Scalia, it could make a dramatic shift in the direction of the Court. Replacing Justice Ginsburg or Justice Breyer would likely bring about little change in the Court’s decisions.
And so the sweepstakes goes on.
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