Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era

57 Pages Posted: 31 Jan 2018 Last revised: 4 Aug 2018

Christine Kexel Chabot

Loyola University Chicago School of Law

Date Written: July 28, 2018

Abstract

As the rampant speculation preceding Justice Kennedy’s retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice’s ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama’s terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices’ retirement decisions and disagree whether political factors predict retirement.

This Article identifies key reasons why past studies have found Justices' retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices' success in obtaining like-minded replacements.

The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice’s voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire to presidents who share their ideology.

Keywords: Supreme Court, retirement, Justice Kennedy, judicial politics, empirical

JEL Classification: K40, K49

Suggested Citation

Chabot, Christine Kexel, Do Justices Time Their Retirements Politically? An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era (July 28, 2018). Utah Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=3107788 or http://dx.doi.org/10.2139/ssrn.3107788

Christine Kexel Chabot (Contact Author)

Loyola University Chicago School of Law ( email )

25 E. Pearson
Chicago, IL 60611
United States
8477804832 (Phone)

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