The Washington Post//Scott Lemieux//August 29, 2019
//August 29, 2019
The recent news that Justice Ruth Bader Ginsburg underwent treatment for a tumor on her pancreas sent waves of fear down the spines of Democrats. And for good reason: If Ginsburg’s seat were to become vacant before Jan. 20, 2021, President Donald Trump would almost certainly be able to choose — and get confirmed by the Republican Senate — her replacement. That would not only move the Supreme Court even further to the right, but it would also make it much more likely that Republican nominees will continue to dominate the court even though the party has lost the popular vote in six of the last seven presidential elections.
So should the two Democratic justices who have already had their 80th birthdays — Ginsburg and Stephen G. Breyer — have resigned in 2013 or 2014, when Democrats still controlled the Senate and Barack Obama could have gotten a replacement nominee confirmed? Is it even appropriate for Supreme Court justices to consider who will replace them?
Whether the two liberal justices should have resigned is obviously a judgment call. The case for it is straightforward: If either Ginsburg or Breyer were to die or resign for health reasons, being replaced by a Republican would be a massive setback for the constitutional principles they have dedicated their careers to, with the inevitable gutting or outright overruling of Roe v. Wade being only the beginning. Both justices had a chance to be replaced by someone who shared their values, and it’s easy to argue they should have taken it. On the other hand, Ginsburg, only the second woman to be nominated to the court, does tend to be singled out in calls to resign. For example, when the dean of the University of California, Irvine School of Law wrote a 2014 op-ed urging Ginsburg to step down, he mentioned only in passing the “possibility” that Breyer should retire, too. Whatever conclusion one reaches on that question, it should logically apply to both justices.
Then there’s the question of whether justices should retire strategically. The Supreme Court is supposed to be a nonpartisan institution. Is it right for justices to consider who will replace them?
Well, whether they should, they certainly do.
The Supreme Court is of course not an apolitical institution, and justices are hardly naive about the consequences of nominating replacements who would repudiate their own ideological vision. Chief Justice (and former president) William Howard Taft, for example, refused to resign until President Herbert Hoover agreed to nominate Charles Evans Hughes rather than Harlan Fiske Stone (a more liberal justice who was ultimately promoted to chief justice by Franklin Roosevelt).
Still, for the most part, strategic resignations were not an issue for much of the 20th century, for the simple reason that the loose nature of partisan coalitions and the lesser degree of elite polarization made timing a resignation to ensure an acceptable successor difficult, if not impossible.
For example, Woodrow Wilson nominated both the great liberal Louis Brandeis and the grossly bigoted and intellectually undistinguished James McReynolds. FDR nominated William O. Douglas, who has arguably the most liberal voting record of any justice in the history of the court, but also Jimmy Byrnes, a fairly standard-issue Southern segregationist. For his part, Republican president Dwight Eisenhower nominated the heart of the liberal court of the 1960s, Earl Warren and William Brennan. With no clear ideological pattern in nominations, there was little reason for justices to put much weight on who was in the White House when deciding whether and when to leave.
It was Warren himself whose resignation marked the new partisan era that began with the Republican nomination of Barry Goldwater for president and the full Democratic embrace of civil rights in 1964. The chief justice wanted to protect the legacy of his court and despised fellow Californian Richard Nixon, so he resigned in 1968 to allow Lyndon Johnson (the first Democratic president to consistently name liberals to the court) to choose his successor. However, Warren’s strategic retirement was foiled, as a conservative coalition of Republicans and southern Democrats who wanted revenge on the Warren court they hated teamed up to filibuster the nomination of Abe Fortas to be chief justice, keeping him from the position. This led to Nixon’s getting not one but two immediate nominations when Fortas was forced to resign because of corruption charges.
Since then, strategic retirements have been more the rule than the exception. The only justices since 1968 who resigned while still alive and with a president they weren’t positively disposed to on ideological or partisan grounds were Brennan and Thurgood Marshall, who waited as long as they could during a 12-year run of Republican control of the White House but were ultimately forced off the court by serious health issues. (When Marshall resigned, President George H.W. Bush had approval ratings over 70%, and it may not have seemed as if there was much prospect for a Democrat to replace him at the time.)
Conversely, Republican-nominated justices during this era didn’t need to be forced off the court. Potter Stewart resigned in May 1981, shortly after Ronald Reagan took office. Chief Justice Warren Burger resigned in 1986 to focus on planning the bicentennial celebration for the Constitution, but it is enormously unlikely that he would have done so with Walter Mondale in the White House. Lewis Powell also resigned, and although Reagan didn’t get his first choice of Robert Bork through the Senate, he did get Anthony M. Kennedy, a justice with many similarities to Powell.
Brennan and Marshall aside, the liberal wing of the Supreme Court has acted similarly, at least until very recently. Harry Blackmun, the Nixon appointee who was assigned the majority opinion in Roe v. Wade and was fiercely protective of it, waited to leave the court until the pro-Roe President Bill Clinton could select his replacement. The last of the liberal Republicans, David Souter and John Paul Stevens, didn’t resign until Barack Obama was in the White House. And while Byron White, a JFK-era law-and-order Democrat who stayed the same while the party changed, was generally aligned with the court’s conservative wing, he still saw himself as a Democrat and waited until a fellow Democrat was in the White House before he left the job he had long grown tired of.
This is not to say Ginsburg and Breyer’s decision to stay and risk being replaced by a Republican president is unprecedented even in this era. Chief Justice William Rehnquist stayed on until 2005 despite a litany of health problems, including throat cancer, a decision he may have regretted had John F. Kerry gotten 200,000 more votes in Ohio in 2004. But he won the gamble, as Ginsburg and Breyer still might.
Whatever one thinks of these decisions, it is clear that justices thinking strategically about retirement is common. (Indeed, even in the case of Ginsburg and Breyer, it’s not entirely absent; does anyone think they would resign with Trump in the White House unless medical reasons forced their hand?) It should also be clear that this is not a good system. Justices should serve fixed, nonrenewable terms, rather than having to make a decision about when the most appropriate time to step down should be; some presidents should not get a disproportionate impact on the constitutional development of the country through the vagaries of chance. In 2013 and 2014, Ginsburg and Breyer were faced with a dilemma they never should have had to deal with in the first place. And now that they’ve made their choice, their fellow liberals will have to wait anxiously, one health scare at a time, until the political ground shifts again.
Scott Lemieux is a lecturer in political science at the University of Washington and a cofounder of the blog Lawyers, Guns and Money.