As the rampant speculation preceding Justice Kennedy's retirement made clear, it is difficult to predict when Justices will retire. Justices often defy the conventional wisdom that a Justice is more likely to retire when the president and Senate share the Justice's ideology. For example, Justice Ginsburg chose to remain on the Court rather than retire during President Obama's terms. Her choice is not unusual. Since 1954, a majority of similarly situated Justices refused to retire. In light of this behavior, it is no surprise that existing studies struggle to explain Justices' retirement decisions and disagree on whether political factors predict retirement.
This Article identifies key reasons past studies have found Justices' retirement decisions inexplicable. No studies measure whether Justices actually succeed in obtaining like-minded successors. Nor do past studies consider accurate measures of ideology while controlling for retirements forced by health. This empirical study of modern-era retirements addresses each of these shortcomings. It constructs more accurate measures of ideology by using voting records to pinpoint ideological similarities or differences between Justices, presidents, and Senators who may appoint a successor. It also differentiates between voluntary retirements and involuntary retirements forced by health. Finally, by comparing the votes of a Justice and his or her successor relative to other Justices remaining on the Court, this study offers the first measure of Justices' success in obtaining like-minded replacements.
The analysis reveals that Justices have had limited opportunities to retire to ideologically compatible presidents and Senates, and even then, limited success in obtaining like-minded replacements. Not all Justices had opportunities to time their retirements politically. Health problems forced many Justices to leave at politically inopportune times, and some Justices near the center of the Court were ideologically distant from leaders of both parties by the time they retired. Further, even Justices who retired to ideologically compatible presidents rarely obtained a successor who closely replicated the retiring Justice's voting behavior. Limited success in obtaining like-minded replacements explains why Justices flout calls to retire while presidents who share their ideology are in office.
Christine Kexel Chabot, Do Justices Time Their Retirements Politically: An Empirical Analysis of the Timing and Outcomes of Supreme Court Retirements in the Modern Era, 2019 Utah L. Rev. 527 (2019).