Supreme Court retirements

[Ken Katkin]

I think this question cannot be answered in the abstract, but must be answered in reference to the actual Justices who are currently serving.

Justice Stevens, though appointed by Republican President Ford, presumably now feels closer politically to the Gore camp than to the Bush camp.  But although Justice Stevens is the oldest Justice serving, he seems unlikely to retire voluntarily if his health is not severely impaired, no matter which Presidential candidate gets elected.   A few years ago, in a speech delivered at Northwestern University School of Law, I heard Justice Stevens tell a
packed room that his OLDER brother had just relocated to Florida, and had sat for--and passed--the bar exam there.  The import of this anecdote was not lost on anyone present.

Chief Justice Rehnquist and Justice Scalia have, in the past, expressed desires to retire from the Court.  Moreover, both the Chief and Justice O'Connor have already sat on the court for a relatively long time, and both have suffered from health problems.  Although it seems intuitively plausible that one or more of these three Justices would be more likely to retire "voluntarily" if a Republican could pick their successors, I'm not aware of any
concrete reason to believe either will do so any time soon EVEN if Bush is elected, absent a health reason that would place the issue outside Prof. Tushnet's parameters.

Justices Thomas is very young, and seems unlikely to retire.  Justices Ginsburg and Breyer are the most recent appointees and therefore also are probably not yet considering retirement (although Justice Ginsburg has had some health problems).  Justice Kennedy has sat on the court for a respectable number of years, but he too is relatively young and is rarely the subject of retirement rumors or speculations.

In short, if Prof. Tushnet's thesis is correct, then I think it could be correct ONLY with respect to Chief Justice Rehnquist and/or Justices Scalia and O'Connor.   While this hypothesis, if true, would be far from insignificant, it does seem to me that even with respect to those three Justices, no more than one will likely retire "voluntarily" absent compelling health reasons, no matter who is elected President.


Mark Tushnet wrote:

> All right, I give in!  The motivation for my inquiry, though, was this:  How many justices is the next president likely to appoint?  The answer, I think, depends on who the president is.  My guess is that if Gore wins those appointed by Republican presidents are unlikely to retire voluntarily if their health is not severely impaired, while some of them might retire voluntarily if Bush wins.  (If Nader or Buchanan wins, all sorts of bets are off.)

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Prof. Ken Katkin
Salmon P. Chase College of Law
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Northern Kentucky University
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katkink at nku.edu