The Peril and Promise of SCOTUS Resignations

Abstract

Justice Breyer’s recent manner of effectuating his retirement points out both a problem and an opportunity. The problem is that there is no settled understanding, much less governing law, as to what a justice’s resignation decision means or does. As a result, a justice might renege on a resignation decision or engage in other undesirable forms of resignation creativity. Supporting that worry, it seems that at least two federal circuit judges have recently retracted their resignations out of disaffection for the people the president intended to nominate as their successors. The simplest way to solve that problem is to make resignation letters formally binding. And, it turns out, that reform brings with it a major benefit: it provides a new, auspicious means of achieving federal judicial term limits, a widely desired reform that has so far eluded achievement. How? Through “opt-in term limits,” that is, term limits that are established through judges’ voluntary but binding resignation announcements.

Keywords: court reform, Supreme Court, judicial term limits