The Decision to Retire

[Michael Froomkin - U.Miami School of Law]

On balance (and the cost is the loss of many years of valuable service
from some fine justices), I'd think I'd be tempted by this change.  It
feels fair.  But only if re-appointment were impossible.  Otherwise there
are a new set of perverse incentives imaginable.  I'd also like to know
how many justices have served more than 18 years.

I can see some tough problems, though, that might make me change my mind.
If a Justice dies or resigns before the 18 years are up, does the current
President's new nominee get an 18 year term, or just the unexpired
portion?  What if the remaining part is small?  If we don't relax the rule
against re-appointment, it means some justices have very short terms; and
there is evidence of a learning curve, not to mention institutional costs
of a revolving door court.  If we do relax it, that's as good as undoing
life tenure.  And if it's an 18-year term, pretty soon we are more or less
back where we started, aren't we?

Presumably after 18 years [or less in the case of a term-filler?] the
justice could still sit on courts of appeal by designation, which might
get interesting too.

Here's another way to cast the underlying problem:

Suppose we believe that Justices retire strategically with en eye to
keeping the control of a given seat in a particular party's hands.  This
creates a great modeling problem: what assumptions about justices'
abilities to predict their own health and political changes does it take
to create a model in which, once 'captured' by a particular party, seats
stay in its hands?  At what level of foresight does a court become
'captured' by a party fortunate enough to be in control due to random
fluctuations?  I doubt there an optimal age for a president to appoint a
justice if control is the issue, since younger will usually be better, but
one might test that hypothesis too.


On Fri, 8 Sep 2000, Michael Rappaport wrote:

>         The discussion about the reasons for Supreme Court Justice retirements has
> been interesting.  Let’s assume that at least some justices choose to
> retire based on the politics of the president in office.
>
>         My question is whether people on the list regard this as unfortunate
> aspect of our system.  I would argue that it is problematic that judges who
> are supposed to be non-political, in at least certain senses, are given the
> opportunity to decide this very political question.
>
>         To put the question a little differently, we could adopt through amendment
> a system of staggered 18 year terms for the Justices that would have a
> justice retiring every 2 years.  While one might be for or against this
> term limited system on other grounds, I would argue that at least one
> benefit of this system is that it takes away from the justices the
> political decision whether to give a particular president the appointment
> of their seat.
>
>         The main argument that I can see for allowing justices to keep this power
> is that it gives some power to the justices to replicate themselves (for
> example, liberal justices try to get themselves replaced with liberals).
> Thus, it places limits on the ability of the political process to change
> the composition of the Supreme Court too quickly or too significantly.
> Some might regard this balance of power argument as an advantage, while
> others would deem it a disadvantage.
>
>         Are there other arguments for the existing system?  Does anyone believe
> that justices should be able to make these political decisions?
>
> Mike Rappaport
> Univ. of San Diego School of Law
>

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