This article has been updated.
Retired Supreme Court justice John Paul Stevens went on ABC News' "This Week" on Sunday to promote his new book. Unsurprisingly, he was asked to opine on one of the most gossiped-about aspects of the highest court on the land: Will anyone else retire before the 2016 presidential election?
Stevens had this to say: ‘I think certainly it’s natural and an appropriate thing to think about your successor." Reading between those lines, most Court observers took Stevens' comments to mean that 81-year-old Ruth Bader Ginsburg is likely wondering about how the timing of her exit could change the Court's ideological tilt in the next decade, even if she shows no signs of wanting to leave her posh and influential gig any time soon.
Ginsburg is no stranger to hearing unwelcome advice about her future on the court. This is an issue that fertilizes an op-ed or two every year, as fears about the Supreme Court's agenda or the composition of Congress mount. Erwin Chemerinsky wrote an op-ed last month titled, "Much depends on Ginsburg." Like many op-eds mentioning Ginsburg in the title, he was advocating that she scoot off the bench in the next year aka before the possibility of Republicans taking over the Senate becomes reality.
So long as the Democrats control the Senate, President Obama can have virtually anyone he wants confirmed for the Supreme Court. There has been only one filibuster against a Supreme Court nominee, and that was to block Justice Abe Fortas' elevation to chief justice, not to block his initial appointment. There were 48 votes against Thomas and 42 against Alito, but Democrats filibustered neither. Besides, if Democrats have control of the Senate, they could change the rules to eliminate the filibuster for Supreme Court nominees, just as they did for lower federal court judges and presidential appointments to executive positions.
Marc Tracy wrote a piece last December titled, "Justice Ginsburg Is Wrong: She Should Step Down." Randall Kennedy at Harvard Law wrote in 2011, "Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do." Jonathan Bernstein wrote last March that if Ginsburg wants to stay on the bench, she should move to the District Court of Appeals and let Obama nominate a liberal successor for her in the Supreme Court before the 2016 presidential election draws too near. Seth Masket wrote last month, "Ginsburg is not 'irreplaceable' None of us is. She will be replaced. Maybe this year, maybe 10 years from now, maybe longer, but it will happen. The question is by whom. There’s nothing wrong with making that an issue as she considers her legacy on the Court."
Others have argued that pushing Ginsburg out the door ASAP is the wrong course of action. Dahlia Lithwick wrote last month, "Ginsburg herself often says that the chances of another Ginsburg being confirmed to the court today are negligible. It’s perverse in the extreme to seek to bench Ginsburg the fighter, simply because Senate Democrats are unwilling or unable to fight for the next Ginsburg." Emily Bazelon wrote last year that all this retirement talk sure sounds sexist. Garrett Epps wrote that everyone should stop telling Ginsburg to retire because her work keeps getting more interesting, and her job is her life. Steve Wermiel at SCOTUSBlog argues, "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."
Thinkpieces on the political future of the Notorious RBG are an Internet cash crop only bested by thinkpieces about Hillary Clinton's political future. With so much riding on their decisions, people feel like they have no option but to weigh in.
So, everyone has an opinion on whether Ginsburg should retire. But what are the facts about the chances? Here's some important context about when Supreme Court retirements and the politics of Supreme Court nominations to keep in mind.
Supreme Court justices never want to talk about retiring.
Northern Illinois University professor Artemus Ward wanted to interview former and current Supreme Court justices for his book "Deciding To Leave: The Politics of Retirement from the U.S. Supreme Court." Unfortunately, the justices were not interested. Justice John Paul Stevens' response was particularly entertaining.
You have selected an interesting and important topic. I hope that it is published in time to provide me with some guidance in making my retirement decision. In the meantime, I shall welcome any advice that you offer me, but prefer to keep my thoughts about that subject to myself.
The book was published in 2003. Stevens retired in 2010. When Stevens did retire, Ward told Congressional Quarterly, “What Stevens is doing confirms the idea that politics matter to him, and that the institution matters," an opinion that Stevens seems to agree with in his remarks yesterday.
From 1953 to 2010, 46 percent of exiting Supreme Court justices left during a presidency that shared their partisanship.
56 percent of the justices -- 14 out of 26, were replaced by a justice of the same ideology, according to a 2011 study from the Quinnipiac Law Review. The conclusion: "If Supreme Court justices wish to provide co-partisan presidents with the opportunity to replace them with co-partisan successors, they are failing about half of the time."
The last time a Democratic president appointed a Supreme Court justice with a Republican senate? 1895.
As Philip Bump at the Atlantic Wire -- and soon to be of the WaPo! -- pointed out, Grover Cleveland was the last Democratic president to get a Supreme Court nomination through a Republican-controlled Senate. Republican presidents, on the other hand, have had 12 Supreme Court nominees approved by a Democratic senate, as this chart shows.
If Republicans take back the Senate in November and a Supreme Court vacancy appears, President Obama will have to pick a nominee in circumstances that haven't been seen in over a century. If Ginsburg stepped down while Republicans ruled Congress, Obama would likely have no choice but to appoint someone less liberal to take her seat.
The average age at which Supreme Court justices retire? 78.7.
According to a 2006 study conducted by the Harvard Journal of Law and Public Policy, Supreme Court justices are retiring later and later. Before 1971, the average age of retiring Supreme Court justices was 68.3.
The academics conclude the longer terms could be partly a result of justices timing their retirements for political advantage.
A second possible cause for longer tenures—the increased politicization of the Court over the last century—may have made political motives a more important factor in Justices’ retirement decisions, which could have resulted in their deciding to stay on the Court longer for strategic reasons. While it has always been recognized that the Court has had some influence on politics, in the last fifty to eighty years the Court has come to be seen as a more important player than ever before in effectuating political and social change. As a result, the political views of individual Justices have become correspondingly more important. To sitting Justices contemplating retirement, the political views of a likely replacement (and hence those of the presiding President) may lead to their timing their resignations strategically. Such strategic resignations may have led more politically minded Justices to stay on the Court longer and later in age, which has expanded the real-world, practical meaning of life tenure. Politics and strategic factors in Justices’ retirement decisions may have been enhanced in recent years by frequent splits in party control of the Senate and the executive branch between 1968 and 2002.
Some justices had hoped to delay their retirement for political reasons, but weren't successful.
Justices Hugo Black, William Douglas, John Marshall, Thurgood Marshall, Earl Warren and William Brennan had all expressed wishes to delay their retirement until a Democratic president could appoint their successor. They all ended up dying or falling into ill health, forcing a change of plans.
Plenty of other justices successfully waited to retire until a president of their liking came along, as a 2012 article by Sheryl Gay Stolberg shows:
The court’s most recent retirees, Justice David H. Souter and Justice Stevens, were appointed by Republicans, but as the court shifted right, they moved left. Justice Souter, who retired at 69, made it clear that he disliked Washington and wanted to move back home to New Hampshire. Both he and Justice Stevens, by then the leader of the court’s liberal wing, stayed on until Mr. Obama became president.
“One can infer that they were waiting,” Professor Stone said.
Others have also waited until a president of their liking occupied the White House. Byron R. White, appointed by John F. Kennedy, retired early in Bill Clinton’s presidency. Potter Stewart, appointed by Dwight D. Eisenhower, left during Mr. Reagan’s first term. Harry A. Blackmun, a Nixon appointee best known for writing the Roe v. Wade ruling, retired at 85, under Mr. Clinton.
“He had migrated so far to the left that he didn’t want a Republican to replace him,” said Linda Greenhouse, the author of a Blackmun biography and a former reporter for The New York Times who covered the court. “He achieved his goal.”
103 justices have left the Supreme Court since 1789. Only 56 of them retired.
The remaining 47 justices died in office. However, dying in office has become far less frequent in the past century. Since 1955, only one Supreme Court justice has died while still serving -- Chief Justice William Rehnquist, in 2005.
Justices are more likely to die in office if the incumbent president is not from the same party as the president who first appointed them to the Supreme Court.
This is from a 2010 study by Ross Stoltzenberg and James Lindgren. The same study shows that Supreme Court justices are 168 percent more likely to retire if the incumbent president is in the same party as the president who originally appointed them to the Court, and the administration is in the first or second year of a four-year term.
Post-Supreme Court life is more exciting than it's ever been.
We currently have three retired Supreme Court justices still alive in the United States -- David Souter, John Paul Stevens and Sandra Day O'Connor -- who often still comment on legal issues, as shown by Stevens' recent comments and book tour. As former New York Times reporter Linda Greenhouse said in 2011, “Until now there wasn’t much post-judicial behavior. Those who weren’t carried out were pretty old and debilitated by the time they left the court. Now we have this unusual collection of energetic, very engaged individuals.”
If the justices currently being pressured to retire do leave the Court soon, they'd likely join their former colleagues in pursuing an active retirement. Ginsburg would likely also watch lots of opera -- and maybe even invite Justice Antonin Scalia.
Correction: Chief Justice William Rehnquist died in 2005, not 1995, as an earlier draft of this article stated.