A little more than a year ago, Harvard Law School Prof. Randall Kennedy sounded the alarm.
“Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire,” Kennedy wrote in the pages of The New Republic. “That would be the responsible thing for them to do.”
If they didn’t, Kennedy warned, and “if Obama loses, they will have contributed to a disaster.”
As the presidential race heats up, and the Supreme Court justices settle into their chambers to write their last and most consequential rulings of the 2011-12 term—from health care to immigration—Kennedy’s question once again seems relevant, even revelatory: most court watchers agree it’s now too late for Ginsburg—or Breyer, or any other justice—to give President Obama a third nomination to the high court before the election.
Kennedy’s hypothetical has taken on renewed significance, however, since Mitt Romney is currently polling close to or above President Obama in several key battleground states. If he were to unseat Obama this fall, and Ginsburg—a two-time cancer survivor who turns 80 next March—doesn’t feel she can continue through Romney’s first (or possibly second) term, should liberals fault her for potentially tilting the balance of the court for decades to come? (Breyer, 72, has had no reported major health scares, although he does seem to be a burglar magnet.)
This is the “disaster” Kennedy foresaw: a multigeneration conservative majority on the Supreme Court. Since the 1990s, the court has been in ideological equipoise: a conservative bloc and a liberal bloc, each regularly finding itself in the position of needing to win the vote of Justice Anthony Kennedy (or, until her retirement in 2006, Justice Sandra Day O’Connor).
Of course, the justices themselves resist characterizing their votes as “liberal” or “conservative,” instead arguing that they are guided by the Constitution and other supposedly “neutral” principles. But that pretense took a hit in 2000 by the vote in Bush v. Gore, the core of which was decided 5-4, with the conservative justices (including Kennedy) voting in favor of Bush’s argument and the liberal justices voting in favor of Gore’s.
Ginsburg was on the losing end of that one, but a switched vote by Kennedy or O’Connor could have tipped the scale in her direction—as has happened in several other cases over the dozen years since. If Ginsburg were to be replaced by a President Romney, liberals reasonably fear a string of votes against them in cases ranging from abortion rights to criminal defendants’ rights, from LGBT equality to affirmative action.
This isn’t a new concern: In the mid-1970s, Justice William O. Douglas, who’d been appointed by FDR in 1939, faced his replacement being named by a Republican president.
As Bob Woodward and Scott Armstrong recounted in The Brethren, Douglas told a friend he would not step down despite suffering from debilitating illness. “Even if I’m half-dead, maybe it will make a difference about someone getting an education,” Douglas said. “There will be no one on the Court who cares for blacks, Chicanos, defendants, and the environment.”
In the long run, Douglas’s fears did not come to pass: he stepped down in 1975, giving a nomination to President Gerald Ford, who picked John Paul Stevens—a moderate Republican at the time who turned into a steadfast member of the court’s liberal bloc.
Dawn Johnsen, a professor at Indiana University’s Maurer School of Law, told The Daily Beast that Douglas was not alone in looking at who is in the White House when considering stepping down. “Supreme Court justices (including Justice Ginsburg) undoubtedly are keenly aware of the tremendous stakes involved in when they retire and who appoints their successor.”
Although several political-science scholars describe the court in directly political terms, few legal scholars on either the left or right share Randall Kennedy’s desire for such a politically timed retirement.
Eugene Volokh, a law professor at UCLA who characterizes himself as a libertarian-leaning conservative, defends Ginsburg choosing the time for her own retirement.
“Justice Ginsburg has to make a decision that makes sense for herself based on her judgment about what she wants to do and how long she wants to serve her country and how much it matters to her that her replacement be named by a President Obama rather than a President Romney, and how she feels. She has a better sense about her health than you or I do,” he said.
Perhaps reflecting the generally high level of respect accorded the justices, Kennedy did not suggest that Justice Thurgood Marshall, for whom he once clerked, had damaged the court by failing to retire under a Democratic president. The first President Bush filled Marshall’s seat with Clarence Thomas, by many measures the most conservative justice on the court.
University of Chicago law professor Geoffrey Stone, the former chair of the board of the American Constitution Society, a left-leaning legal organization formed to counter the influence of the conservative Federalist Society, agreed with Volokh.
“Justices have no responsibility to time their retirements in order to maximize the probability that the president who appoints their successors will have views similar to their own,” Stone said.
The more interesting question, Stone said, “is whether it is morally problematic for justices intentionally to time their retirements in order to maximize the probability that their successors will be like them.
“They care deeply about the law, they believe they have the ‘right’ approach to the law, and as patriotic Americans they naturally want to see their successors follow in their footsteps. But is that something that should be admired?”
Prof. Jeffrey Segal, the chair of the political-science department at Stony Brook University and a leading court scholar, said that justices “absolutely” should consider the political implications of their retirement.
“If you believe in women’s rights the way that Justice Ginsburg obviously does, or abortion rights or any of the other things that she so strongly believes in, why would you want—on this closely divided court—why would you want your retirement to set in motion an undoing of the things that you’ve spent your lifetime accomplishing?”
But Segal acknowledged that the justices don’t necessarily share that perspective.
“I think it is something that should be considered, but there are people who have studied this systematically, and there seems to be very, very little evidence that the justices time their retirements to the occupants in the White House,” Segal said. “If you look back historically, it’s maybe some tiny effect.”
One reason for this is that the process of filling a Supreme Court seat is contingent on so many unpredictable variables that it’s difficult to predict what’s going to happen at any given moment.
“Gaming the system is a very tough enterprise,” said Robert Raben, former assistant attorney general for legislative affairs in the Clinton administration. Even assuming a justice wanted to, Raben said, the timing and actions of the process—from retirement announcement to nomination to hearings to confirmation—are hard to gauge from One First Street.
No matter what calculations go into a justice’s decision about retirement, the bottom line is that Ginsburg remains on the bench, and barring a calamity she will be there when the president likely to replace her takes the oath of office next January.