When should a Supreme Court justice retire? There is no simple answer. But let’s compare the recent experiences of six liberal justices — three Republican-appointed and three Democrat-appointed.
Justice Harry Blackmun was appointed by President Richard M. Nixon in 1970. He was recommended for the job by a childhood friend, Chief Justice Warren Burger. Yet Blackmun and Burger became increasingly estranged as Blackmun’s decisions became more liberal. Blackmun soldiered through 12 years of the presidencies of Ronald Reagan and George H.W. Bush. He then resigned early in Bill Clinton’s presidency. This resulted in Clinton naming Stephen Breyer as Blackmun’s successor.
Justice John Paul Stevens was appointed by President Gerald Ford in 1975. He quickly established a reputation as one of the more liberal members of the Court. Despite Republicans controlling the presidency for the previous 20 out of 28 years, Stevens tendered his resignation only after Barack Obama became president, and Stevens was then succeeded by Elena Kagan.
Justice David Souter was appointed by President George H. W. Bush in 1990. Starting with his support for Roe v. Wade, his opinions became more liberal throughout his tenure. At the end of George W. Bush’s term of office, he waited a mere 90 days after Obama’s inauguration to resign and make way for Sonia Sotomayor’s nomination.
These three liberal Republican-appointed justices voluntarily left the Court knowing their seats would be taken by three justices who would be appointed by Democratic presidents and confirmed by a Democratic Senate. These justices obviously trusted Democrats, rather than Republicans, to nominate successors who would continue their liberal legacies.
So how do these liberal Republican-appointed justices compare with our three liberal Democratic-appointed justices: Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan?
The late Justice Ginsburg’s story is well-known. If she had chosen to resign in 2013, she would have been 80 years old with a distinguished 20-year record on the Supreme Court. Her successor would have been named by Obama and confirmed by a Senate controlled by Democrats. Yet her refusal to resign eventually resulted in the appointment of Amy Coney Barrett by President Donald Trump.
And how about Sotomayor and Kagan, who replaced Souter and Stevens, respectively?
Recently, Ian Millhiser on Vox bluntly begged Sotomayor and Kagan to resign this year to guarantee they will be succeeded by justices with similar constitutional values. He notes that the possibility of Donald Trump’s winning in November means that timing is crucial.
While Sotomayor and Kagan have every right to remain on the court as long as they wish, there are a number of points to consider.
First, Sotomayor and Kagan have served 15 and 14 years on the court, respectively. Throughout history, the average tenure of a Supreme Court Justice has been 16 years. Neither justice would be leaving the Court particularly early in their careers.
Second, Democrats currently control both the presidency and the Senate. It is a state of affairs rarer than you might think. In the last 44 years, this is only the 12th year it has occurred. Right now, liberal stars are in perfect alignment in Washington.
Third, there has never been a deeper and more diverse pool of potential justices who are liberal than there is now. The last half-century has witnessed a dramatic increase of men and women judges and lawyers of all racial and ethnic backgrounds, many of whom would make outstanding nominees.
Justices Kagan and Sotomayor have no duty to give up their seats. But the ultimate question is not what they owe the public. Rather, it’s what they may owe to themselves — and to their judicial legacies.
In this regard, the Democrat-appointed liberal justices might just take a lesson from their former colleagues appointed by Republicans.
Timothy P. O’Neill is Professor Emeritus at the University of Illinois Chicago School of Law.
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