How to Persuade a Supreme Court Justice to Retire

(Bloomberg Opinion) -- No one seems to know if Anthony Kennedy is retiring at the end of the Supreme Court's term. The conventional wisdom holds that justices decide to leave when they know they can effectively pick the ideological disposition of their successor, depending on who the president is. But that assumption does not seem to fit in the case of the 81-year-old Kennedy, given his centrist role on the court.

So rather than adding to the speculation about his plans, it might be useful, or at least interesting, to look at how Supreme Court retirements played out in the past.

The practice of the strategic retirement is a recent phenomenon in any case, one born of earlier attempts to push out aging justices who stood in the way of a new political regime. If the past is prologue, and the current justices refuse to retire, Congress could dangle enticements to get them to leave – deals that prove difficult to turn down.

In the earliest years of the U.S., the job of a Supreme Court justice was downright brutal. In addition to hearing cases, justices had to serve in far-flung federal circuit courts. Each judge was assigned to one of three geographic regions, and spent a good portion of each year traveling by carriage, sleigh or even on foot. This was called “riding circuit,” and it was not popular with the first “supremes.”

In a letter co-signed by several of his associate justices in 1792, Chief Justice John Jay lamented: “Some of the present judges do not enjoy health and straight of body sufficient to enable them to undergo the toilsome journeys through different climates and seasons.” Justices hated the practice. And so they simply quit.

In the 19th century, circuit riding gradually ceased to be mandatory, and the job became far more manageable for aging justices. As the legal scholar Artemus Ward observed in his landmark study of Supreme Court retirements, from the 1820s onward, the justices no longer left the job. They stayed…and stayed…and stayed. 

Some judges wanted to leave their positions; some even expressed a desire to retire at a propitious moment, when a president might appoint a like-minded replacement. But almost none of them actually did. 

The reason, according to Ward, was the lack of a retirement package: When justices left, they got nothing from the government. So they generally remained at the desks until death, often outliving the political parties that had elevated them to their positions in the first place.

This proved immensely frustrating to the politicians controlling Congress and the presidency, who found their ambitions thwarted by dinosaurs appointed many years earlier. But it wasn’t until after the Civil War, when the so-called “radical” Republican Congress founded itself at odds with Democrats on the Supreme Court, that legislators stumbled on a solution to the problem by making the aging justices an offer they couldn’t refuse: a retirement package. This was a pension that removed the financial incentive for staying on the Supreme Court.

And it worked, at least initially: Two justices decided not to wait for a more hospitable political climate. They simply took the money and retired. This solution to the problem was far easier to carry out than the other obvious remedy: a mandatory retirement age, which would have required constitutional amendment.

Still, the terms of the pension plan, while generous, still left many justices unable to retire. To draw their full salary after retiring, a judge needed to be at least 70 years old and have accumulated 10 years of service. Many judges couldn’t meet these requirements, particularly given that life expectancy was so much lower then. And so they stayed, though more of them retired voluntarily in the late 19th century than they did earlier. But few did so in a politically strategic fashion.

The 1930s saw significant changes to the way Supreme Court retirements were handled. As in 1869, partisan politics was the driving force. After Franklin Roosevelt saw his New Deal programs thwarted by a conservative court -- whose members were derided by critics as the “The Nine Old Men” -- he initially tried to blunt their power by expanding the number of justices in a “court packing” scheme. This eventually failed, but Congress adopted a more elegant solution in the interim.

The new retirement provisions offered money, but they also offered stature: Justices could now retire, collect their pensions and maintain “senior status,” which enabled them to serve as judges in lower courts. The new benefits persuaded some of the most vociferous opponents of the New Deal to retire. Even James Clark McReynolds, who reportedly vowed that “I’ll never resign as long as that crippled son-of-a bitch” -- the polio-stricken president -- “is in the White House,” stepped down.

By 1954, the political tides had shifted yet again, and a Republican Congress and president faced a Supreme Court full of liberal opponents. Congress made retirement an even more alluring proposition: Any federal judge with 15 years of service could retire at age 65 with “senior” status and still draw a full salary. Not bad.

At the same time, though, a number of seemingly modest changes made the life of a Supreme Court justice considerably more tolerable. Beginning in 1955, oral arguments, once heard five days a week, dropped to three. In addition, justices got access to drivers and cars, and no longer had to drive to the court, vainly searching for a parking spot (this was actually a source of considerable complaint in the 1950s). Add to that the growing use of law clerks, and by 1972, Supreme Court Justice William Douglas could credibly complain to Chief Justice Warren Burger: “The Court is overstaffed and underworked.”

The upshot of all these changes was that justices from the 1970s onward have had the luxury of retiring when they want to. In his study, Ward found that the combination of generous retirement benefits and reduced workload has given aging justices the leeway to leave on their own terms, effectively picking the ideological disposition of their successors.

If members of Congress are unhappy with this bargain, and want more control over the turnover, nothing is stopping them from offering an even better deal, one too good to turn down. History is on their side. 

Be creative. Perhaps a retiring justice would like a vacation house on the beach. Or free meals for life at Le Diplomate. 

And if the carrots won’t work, there’s always the stick. Hold oral arguments seven days a week; make the justices take the Metro to work; ditch the law clerks and force the justices to write all their own opinions. Heck, get rid of air conditioning in the Supreme Court.

There are countless ways to get people to retire. Congress has only itself to blame for a failure of imagination.

©2018 Bloomberg L.P.