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Elections Have Consequences
One of the most visible rewards of winning a Presidential election is the power to fill Supreme Court vacancies. With this in mind, I've had a look at the vacancies on the USSC in recent history (using the last half century as my definition of 'recent history') and the various aspects of those vacancies: the reasons for them, the ages of Justices at retirement and the ages of Justices at their deaths. I'm then going to look at the current Court and assess the likelihood of each of the various Justices vacating their seat over the next four and eight years, respectively.
To begin, let's have a look at recent vacancies on the United States Supreme Court. Since 1963, there have 18 Justices have left the Supreme Court. The specifics of their departures are as follows:
Reasons for Retirement
*Varying health issues (including the death on the bench of Chief Justice Rehnquist) were the reasons behind six vacancies
*Simple retirement was the reason behind nine vancacies
*Resigning to take another position was the reason behind one vacancy
*Political considerations were the reasons behind two vacancies
Age at Retirement
The average age of these retiring Justices is 75; the median retiring age of these Justices is 76.
Longevity of Justices
The average Justice (excluding those still living) lived to be 77 years old; the median lifespan of these Justices is 84.
The Future
Now let's consider each current Justice of the United States Supreme Court and how likely they are to vacate the court at some point before January 20, 2017. Note that no Justices will celebrate birthdays between now and Inauguration Day, so all ages currently listed will be the same when President
Bush leaves office.
JUSTICE RUTH BADER GINSBURG -- AGE 79
One of the liberal wing's stalwarts, Justice Ruth Bader Ginsburg is the oldest member of the Court. At 79 she is a thirteen-year survivor of colo-rectal cancer and a three-year survivor of pancreatic cancer. While currently in good health, she is well past the average age of retiring Justices. She has suggested that she will step down upon reaching the age of 82, which will occur in 2015. At any rate, it seems very likely that she will leave the high court by the end of President Obama's second term.
Odds of vacating before January 20, 2017: 90%
JUSTICE ANTONIN SCALIA -- AGE 76
The longest-serving member of the United States Supreme Court, Justice Antonin Scalia has recently passed the average and median ages of retiring Justices. However, if his temperment is any reflection on his constitution, Scalia will likely have more than four more years in him as a Justice. Personally, I tend to think that his contrarian nature indicates that he'll be serving as long as is reasonably possible even to the point where I suspect he doesn't unduly concern himself with who might be in the Oval Office when and if he does contemplate retirement. That said, all other things being equal I expect him to prefer to outlast President Obama in office.
Odds of vacating before January 20, 2017: 30%
JUSTICE ANTHONY KENNEDY -- AGE 76
Justice Kennedy currently occupies the position of the Court's swing vote, periodically enraging both the left and the right, depending on the decision. He has now sat on the USSC for nearly a quarter century, and though he does not seem to intensely relish his position to the extent that Justice Scalia does, that impression may only be due to their comparative personalities. However, as in the case of Justice Scalia, one would think he would attempt to remain in office beyond the Obama Presidency in order that he might be replaced by a Republican President.
Odds of vacating before January 20, 2017: 30%
JUSTICE STEPHEN BREYER -- AGE 74
I believe Justice Breyer is of an age and health that gives him realistic hope of serving on a United States Supreme Court with a liberal majority, and for that reason I think he is more likely than not to remain on the court beyond this coming Presidential terms, even if that risks having to retire when his replacement might be named by a President who prefers a more conservative Justice. Breyer may look forward to a day when he is approaching 80, when Justice Ginsburg has stepped down in favor of a younger liberal Justices, and when perhaps a consertive Justice has also been replaced by someone more in line with Justice Breyer's judicial philosophy. Justice Breyer would then sit as the elder Justice of the high court's liberal majority. On the other hand, he may wish to ensure that he is replaced by a Democratic President, and thus step down before President Obama leaves office. For these conflicting reasons I find the actions of Justice Breyer the most difficult to predict.
Odds of vacating before January 20, 2017: 40%
JUSTICE CLARENCE THOMAS -- AGE 64
Justice Thomas' legal career has often been a bitter one and judging from recent publications he remains a bitter man. Though only 64, he's been on the USSC for almost 21 years, and promises to be on for many more. Even more so than Scalia, I think, Clarence Thomas is determined to soldier on through
decade after coming decade. How his bitterness affects his aging remains to be seen. Perhaps he'll come to some terms with his situation and that will change his outlook; this could only help his health. But I foresee continuing years of silent defiance of his detractors as he sits on the high court.
Odds of vacating before January 20, 2017: 20%
JUSTICE SAMUEL ALITO -- AGE 62
There's not much to speculate with the Court's newest conservative Justice. At only 62 years of age and in apparently fine health, Samuel Alito looks to be around for the foreseeable future, and very likely well beyond the next four years.
Odds of vacating before January 20, 2017: 15%
JUSTICE SONIA SOTOMAYOR -- AGE 58
Still in her 50s, Justice Sotomayor seems destinated for many more years on the Supreme Court.
Odds of vacating before January 20, 2017: 10%
CHIEF JUSTICE JOHN ROBERTS -- AGE 57
The Chief Justice is the youngest of the Court's conservative bloc. One would expect him to spend at least another decade or more on the Supreme Court. At that point he could retire at a relatively young age while still having made an impact as Chief Justice. On the other hand, 20 or 25 years down the
road the USSC might still be the Roberts Court. At any rate, it would take something unforeseen to see him exiting the seen before 2017.
Odds of vacating before January 20, 2017: 10%
JUSTICE ELENA KAGAN -- AGE 52
The youngest Justice, Elena Kagan may well still be on the United States Supreme Court three decades in the future.
Odds of vacating before January 20, 2017: 5%
In Short
The take-aways from this can be summed up in a few short observations:
*President Obama is very likely to replace Justice Ginsburg in his second term.
*There is a roughly even chance that either Justice Kennedy or Justice Scalia will leave the Court in the next four years, allowing President Obama to make an appointment that flips the ideological leaning of the Supreme Court.
*It is somewhat more likely than not that Justice Breyer will remain on the high court when President Obama leaves office, potentially giving a future Republican President hopes of replacing a liberal Justice.
*There is perhaps a 50-50 chance that one of the remaining Justices -- Thomas, Alito, Sotomayor, Roberts, Kagan -- will leave the USSC in the next four years for some as-yet-unknown reason.
JUSTICE RUTH BADER GINSBURG -- AGE 79
One of the liberal wing's stalwarts, Justice Ruth Bader Ginsburg is the oldest member of the Court. At 79 she is a thirteen-year survivor of colo-rectal cancer and a three-year survivor of pancreatic cancer. While currently in good health, she is well past the average age of retiring Justices. She has suggested that she will step down upon reaching the age of 82, which will occur in 2015. At any rate, it seems very likely that she will leave the high court by the end of President Obama's second term.
Odds of vacating before January 20, 2017: 90%
I fully expect her to go and I would be surprised if she makes it to 82.
Quote:
Originally Posted by Mictlantecuhtli
JUSTICE ANTONIN SCALIA -- AGE 76
The longest-serving member of the United States Supreme Court, Justice Antonin Scalia has recently passed the average and median ages of retiring Justices. However, if his temperment is any reflection on his constitution, Scalia will likely have more than four more years in him as a Justice. Personally, I tend to think that his contrarian nature indicates that he'll be serving as long as is reasonably possible even to the point where I suspect he doesn't unduly concern himself with who might be in the Oval Office when and if he does contemplate retirement. That said, all other things being equal I expect him to prefer to outlast President Obama in office.
Odds of vacating before January 20, 2017: 30%
JUSTICE ANTHONY KENNEDY -- AGE 76
Justice Kennedy currently occupies the position of the Court's swing vote, periodically enraging both the left and the right, depending on the decision. He has now sat on the USSC for nearly a quarter century, and though he does not seem to intensely relish his position to the extent that Justice Scalia does, that impression may only be due to their comparative personalities. However, as in the case of Justice Scalia, one would think he would attempt to remain in office beyond the Obama Presidency in order that he might be replaced by a Republican President.
Odds of vacating before January 20, 2017: 30%
I can see these two making a concerted effort to prevent being replaced by a liberal. I think the only way either of them will leave at this point is feet first.
Quote:
Originally Posted by Mictlantecuhtli
JUSTICE STEPHEN BREYER -- AGE 74
I believe Justice Breyer is of an age and health that gives him realistic hope of serving on a United States Supreme Court with a liberal majority, and for that reason I think he is more likely than not to remain on the court beyond this coming Presidential terms, even if that risks having to retire when his replacement might be named by a President who prefers a more conservative Justice. Breyer may look forward to a day when he is approaching 80, when Justice Ginsburg has stepped down in favor of a younger liberal Justices, and when perhaps a consertive Justice has also been replaced by someone more in line with Justice Breyer's judicial philosophy. Justice Breyer would then sit as the elder Justice of the high court's liberal majority. On the other hand, he may wish to ensure that he is replaced by a Democratic President, and thus step down before President Obama leaves office. For these conflicting reasons I find the actions of Justice Breyer the most difficult to predict.
Odds of vacating before January 20, 2017: 40%
Other than Ginsburg, this is the justice Obama has the best chance of replacing, he is a swing voter on court matters so I don't see him wed to one side or the other. If he stays it will be because he stills enjoys the job.
In Short
The take-aways from this can be summed up in a few short observations:
*President Obama is very likely to replace Justice Ginsburg in his second term.
*There is a roughly even chance that either Justice Kennedy or Justice Scalia will leave the Court in the next four years, allowing President Obama to make an appointment that flips the ideological leaning of the Supreme Court.
*It is somewhat more likely than not that Justice Breyer will remain on the high court when President Obama leaves office, potentially giving a future Republican President hopes of replacing a liberal Justice.
*There is perhaps a 50-50 chance that one of the remaining Justices -- Thomas, Alito, Sotomayor, Roberts, Kagan -- will leave the USSC in the next four years for some as-yet-unknown reason.
Ginsburg's retirement doesn't change the balance of the Court.
Scalia isn't going anywhere nor is Kennedy, both will probably on leave the court on a stretcher and carried out to an awaiting hearse.
What it does mean is that if Ginsburg retires or dies the Court won't be shifted even more to the right but other than that, nothing earth shattering.
Ginsburg's retirement doesn't change the balance of the Court.
Scalia isn't going anywhere nor is Kennedy, both will probably on leave the court on a stretcher and carried out to an awaiting hearse.
What it does mean is that if Ginsburg retires or dies the Court won't be shifted even more to the right but other than that, nothing earth shattering.
Actually, what Ginsburg's departure before 2017 means is that three liberal Justices are locked up into the decade of the 2030s. It won't shift the immediate balance; it'll prevent a Republican President from shifting the balance in the future.
Scalia and Kennedy? I doubt they want to retire anytime soon. But sometimes life makes your career choices from you. Justice Thurgood Marshall was bound and determined to last on the high court long enough to retire under a Democratic President -- and we all know how that turned out.
This is from February of this year, but since it is a look at possible second-term appointments by President Obama to the United States Supreme Court (assuming at least one vacancy, which is extremely likely), it is worth a read.
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Looking at the ages of these justices is a perfect illustration of the need for a mandatory retirement age for the Supreme Court (or maximum service lengths). Generally I'm not in favor of mandatory retirement, but in this case it's necessary to balance out the lifetime appointments. Supreme Court verdicts just have too much potential to come off as a group of elderly people imposing their will on the younger populace. Also, it would be nice to see some actual youth on the court (and 52 doesn't count as youth). Perhaps we should reserve one limited-term seat for the valedictorian in Constitutional Law that scores the highest on some standardized test that could be given at the same time as the Bar Exam or something.
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