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Will Breyer retire while Democrats hold the White House and Senate? Here’s what political science tells us.

Most federal judges retire for personal, rather than politically strategic, reasons. Supreme Court justices may be different.

- April 21, 2021

On April 9, a mobile billboard calling for Associate Justice Stephen G. Breyer to retire circled the Supreme Court building, sponsored by Demand Justice, a liberal advocacy group. Given Democrats’ control of both the White House and, by the slimmest of margins, the Senate, liberals reason that this year will be President Biden’s best opportunity to appoint a candidate they would favor. As a result, Demand Justice and other liberal groups have increased pressure on Breyer to retire now.

Washington’s conventional wisdom has it that federal judges’ decisions to retire are primarily motivated by ideology and partisanship. Political science research hasn’t conclusively shown that to be true. Do judges and justices actually retire strategically — that is, decide to step down under an ideologically compatible president, for which party is a common indicator? Here’s what we know.

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Conventional wisdom holds that judges’ motivations to retire are driven by politics alone

Journalists often report about federal judges choosing to retire or take senior status — a reduced caseload — once a like-minded president takes office. Since Biden’s inauguration, more than 25 federal district and appellate court judges have announced their decisions to step down. That number is high, even compared to Biden’s recent predecessors. During the same time periods in their new administrations, Barack Obama saw 15 new federal judicial vacancies, Donald Trump had 14, and George W. Bush had 16.

On occasion, judges and justices themselves reveal they base retirement decisions on political calculations. For example, after CBS reported that Democratic presidential candidate Al Gore had won Florida — and therefore the election — on election night in 2000, Justice Sandra Day O’Connor said to others at a party, “This is terrible,” according to Newsweek reporter Michael Isikoff. Her husband explained that had Bush won, they’d planned to retire to Arizona. Of course, the Florida news was preliminary; in the end, O’Connor herself cast one of the votes in Bush v. Gore that ended the 2000 election in George W. Bush’s favor. But her outburst revealed she timed her retirement strategically.

But empirically, it’s not clear that such calculations are the norm. Of the federal judges retiring since Biden’s inauguration, 16 of the retirees were appointed by Democrats, including Presidents Jimmy Carter, Bill Clinton and Obama, and fully 10 were George W. Bush appointees. Had those 10 been driven by political strategy, we might have expected them to retire either before the 2020 election or even during the lame-duck period. Of course, it’s possible that some Bush appointees might have been uneasy with Trump choosing their replacements. However, given that Trump’s judicial nominations process took advice from the conservative Federalist Society and Republican senators, that seems unlikely.

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Studies of federal court retirements find mixed support for strategic retirement

Political scientists Deborah J. Barrow and Gary Zuk looked at what motivated federal judges’ retirements from 1900 to 1987, finding evidence that judges considered politics, personal economic prospects and their workloads. But more recently, several political scientists’ analyses have found that qualifying for retirement benefits matters more than politics in federal judges’ calculations — and that they’re guided by the “rule of 80.” Since 1984, that rule has allowed judges 65 or older whose combined age and years of service totals at least 80 to retire with a pension equal to their salary. State retirement schemes vary, but scholars have found that economic benefits drive state supreme court judges’ retirement decisions as well.

But is the Supreme Court different, given that its justices are so few and its decisions so significant? Perhaps. Studies of justices’ retirement decisions have found somewhat stronger support for the hypothesis that judges time their retirements politically. Some political scientists have documented individual instances in which justices step down from the court when a president from the same party as their appointing president is in office. But others conclude that politically strategic retirements are a myth, and that justices do not time retirement so that a politically sympathetic president can appoint their successors.

However, Ross M. Stolzenberg and James Lindgren find evidence that, in some limited circumstances, Supreme Court justices do time their retirements politically. Specifically, they find that justices are 2.6 times more likely to retire when the incumbent president belongs to the same party as the president who appointed them, and during that incumbent’s first two years in office.

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A tale of two different political motivations

We can find political motivations behind the last two Supreme Court vacancies. Justice Anthony M. Kennedy not only timed his retirement to occur when a Republican president was in office; he also suggested his successor. The Trump administration went out of its way to assure Kennedy that his legacy would be secure at the very beginning, choosing former Kennedy clerk Neil M. Gorsuch to fill Justice Antonin Scalia’s seat — and then later replacing Kennedy, as requested, with another former clerk and then-D.C. Circuit Court Judge Brett M. Kavanaugh.

Ruth Bader Ginsburg made a very different but also politically calculated decision not to retire during President Barack Obama’s final days in office, despite pressure from liberals to do so. In 2014, she explained to Elle reporter Jessica Weisberg that, given the Republican-led Senate that would have to confirm her replacement, Obama “could not successfully appoint anyone I would like to see in the court.” Of course, in the end, cancer took away her ability to time her departure, enabling Trump and the Republican Senate to fill her seat.

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So when will Breyer retire?

Political science does find that sometimes federal judges time their retirements strategically, for political reasons. Supreme Court justices do appear to be even more likely to do so. But exactly how they calculate political strategy varies. Kennedy strategically retired under a president of the same party as the one who appointed him. Ginsburg waited, hoping for a Democratic president and a more favorable Senate. But each justice is an individual. We’ll find out what Breyer intends when he lets us know.

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Christine Nemacheck is associate professor of government and director of the Center for the Liberal Arts at William & Mary, author of Strategic Selection: Presidential Nomination of Supreme Court Justices (University of Virginia Press, 2007) and co-author of the forthcoming Government by the People (Pearson, 2022).