Opinion | How Judicial Retirements Politicize the Courts

An earlier survey of active and retired federal judges asked them to report how important they placed the ruling president’s party in deciding when to retire. Almost all of the judges reported that they did not consider this a factor in the timing of his retirement. A study published in 2006 concluded that judicial retirement patterns had a bearing on pension eligibility and that “political and institutional factors appear to have little influence on turnover rates by comparison.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not only whether judges retired in the year before or after an election, as other researchers had, but also whether they retired in the first trimester before or after. after an election.

Using data from 1802 to 2019, we examined whether justice resignations and retirements corresponded with election cycles. Between 1802 and 1975, we find that relative to the regular distribution of court departures over time, an additional 6 percent of all court departures coincided with election cycles and appear to have been politically motivated. In other words, the political affiliations of the outgoing judges, as measured by the party of the president who appointed them, were the same as those of the sitting president.

We saw a significant increase in what appear to be politically motivated removals since the 1970s, a historic turning point that coincides with Roe v. Wade and the rise of right-wing evangelical politics, which has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifetime appointments, deviated from the regular pattern of retirements in a way that ensured the outgoing justice’s replacement would be nominated by a president who shared the partisan affiliation of the judge. Such withdrawals are seen in both political parties, and Republican-affiliated judges are slightly more likely to indulge in this partisan behavior.

Political departures from the court are both a symptom and a cause of the growing polarization of the courts, and there is no reason to believe that this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporation of the courts’ legitimacy. So would it be to stagger retirements at random instead of leaving them to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a politically engineered corrective to his drift to the right should not be dismissed as radical.

It is vital that legislators and judges recognize that instituting substantive changes to the Supreme Court and the judiciary in general is not a threat to the integrity of American law. Instead, it is an essential step to counter its accelerating demise and protect the ideal of democracy it claims to support.


Eric Reinhart (@_Eric_Reinhart) is a political anthropologist, psychoanalyst, and physician-in-residence at Northwestern University and a principal investigator in the World Bank’s Data and Evidence for Justice Reform program. Daniel L. Chen is a professor of law and economics at the Toulouse School of Economics and the Institute for Advanced Studies in Toulouse, France, and the principal investigator for the World Bank’s judicial reform program.

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