SCOTUS Retirements: The Carrot and the Stick

By Steve Klepper (Twitter: @MDAppeal)

Yesterday, I had the pleasure of sitting on a Supreme Court Term preview panel at my alma mater, Goucher College, with Associated Press Supreme Court reporter Jesse Holland and political science Professor Nina Kasniunas. Inevitably, the question arose as to why Justice Ruth Bader Ginsburg isn’t choosing to retire while Democrats control the White House and the Senate. Robert Barnes’ delightful piece, The Question Facing Ruth Bader Ginsburg: Stay or Go?, appearing in today’s Washington Post Magazine, gives some insight into this most personal of decisions.

Barnes’ piece provides a good excuse occasion to link to an article I published this past August, The Practical Implications of Recusal of Supreme Court Justices: A Response to Professor Swisher, 72 Md. L. Rev. Endnotes 13 (2013). I noted that, as observed by others: (i) a Justice’s constitutional obligation to decide cases impedes recusal in many situations where a Justice perceives no conflict, but where recusal would nevertheless enhance public perception of the Court’s impartiality; and (ii) proposals to cure that problem by allowing Retired Justices to sit by designation give rise to difficult logistical and ethical questions in selecting the Retired Justice in each case. I posited that the best method of selection would be term-by-term, rather than case-by-case. At the beginning of each term, each Justice could prepare a ranked list of which (if any) Retired Justices could sit in his or her place in the event of recusal or other unavailability. I identified numerous collateral benefits, including one relevant to the growing calls for Justice Ginsburg to retire:

First, such a rule could encourage Justices to retire when they no longer feel at the top of their game but are not ready to say goodbye to the Court entirely. Right now, many Democrats are exasperated that Justice Ruth Bader Ginsburg has yet to announce her retirement while Democrats hold both the presidency and the Senate. And it was not so long ago that Republicans harbored similar frustration over Chief Justice William Rehnquist’s inability—notwithstanding failing health and his professed desire to allow a Republican president to replace him—to bring himself to retire under a Republican president and Republican Senate. If a Republican is elected in 2016, many Republicans would want Justices Scalia and Kennedy to hand their retirement announcements to the new President at the inauguration. The ability to continue to sit by designation could provide a valuable carrot to a Justice considering retirement. There is also a stick. All three retired Justices are to the left of the Court’s present center, giving members of the present majority an incentive to retire under the next Republican president to move the pool of retired Justices rightward.

Since I published that article in August, the liberal calls for Justice Ginsburg’s retirement have amplified. Some of her longtime admirers are now hurling vitriol at her for not stepping down. We can expect the same vitriol from conservatives if Justices Scalia and Kennedy even slightly delay retirement under the next Republican President. I think it would benefit both sides to examine structural changes to make “Retired Justice” a more attractive job title.