Thursday, December 19, 2013

Once More on Judicial Strategic Retirements

I one of those who have been writing for quite a while that if Breyer and Ginsburg care primarily about advancing the positions they've fought for on the Court, the best thing for them to do is to retire. Now. Or at least, pending confirmations of their replacements. But before the 2014 midterms, and certainly before the 2016 elections.

Ginsburg has been firing back. But the best case I've seen for resisting strategic retirements comes from Linda Greenhouse, who channels Ginsburg to Emily Bazelon:
I think from her perspective she is taking a long view of history, not a case by case one, or a term by term one. She has to believe that justice will win out in the end—or that, if it doesn't, her departure at one point or another couldn't be the major factor. I agree with her and I think people ought to give this issue a rest and concentrate on electing Democrats to the White House and the Senate. ... I think the issue is serving as kind of a displacement for the liberals’ general sense of powerlessness—they seem to feel that getting Ruth to resign would be something concrete they could accomplish when all else is failing. 
It's a nice sounding argument, but it won't wash. "Justice will win out in the end?" Politics doesn't have an "end." It just has a series of "nows." Nor is there any certainty about any of it. Political events are incredible contingent, and path dependent; it's very, very, easy to tell counterfactual stories involving slightly different election results and the implications that spin out from there.

Of course, not all events begin new paths of their own. And sometimes, the path is overwhelmed by other factors, whether they are technological, or demographic, or whatever. But Supreme Court Justices, right now, in this extremely partisan era, and in a closely divided court? I don't know anything about "in the end," but it's very easy to see how a flip or two in who serves on the Court could make very large changes which would matter very much for a whole lot of people for decades.

Now, for most political actors, it's certainly true that there's more they can do about House and Senate elections than there is about changing the mind of two individuals. So, sure, if you're a liberal, don't get mad as Ginsburg or Breyer; help a Democrat win a Senate seat.

But I'm not talking about what Democratic activists want -- after all, many of them don't care very much (whether they should or not) about what SCOTUS does. At best, most activists and most voters care about one or two Court outcomes. After all, they have plenty of competing issues, and no particular reason to believe that the Court should be at the top of their list. The people who do care about what the Court does, passionately -- at least, we suspect they care passionately -- are the Justices themselves. So this is on them, not on anyone else.

None of which is to say what Ginsburg or Breyer should do in any absolute sense. It's a great job, and both are clearly -- now -- able to do it at the highest level. As I've said before, giving that up in order to better fight for their principles is a lot to ask. If either of them believes that it's not worth it...it's not up to any of us to pick their priorities. All I'm saying, and I think it's just clearly true, is that if their top priority is fighting for the legal principles and the outcomes they prefer, then resignation is the best way to ensure that priority.

17 comments:

  1. Of course, if one of the legal principles and outcomes she prefers is that the Supreme Court should be non-partisan, then of course she shouldn't resign when a Democrat is in office, but should simply resign at the most appropriate time.

    Not surprising that such a thought hasn't occurred to liberal hacks, of course.

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    1. Yeah. Without agreeing that the people who are pushing for this are liberal "hacks" (I think they are just people who want certain substantive outcomes, but aren't dishonest about that desire), the basic conflict here is that I suspect Supreme Court justices do not view themselves as political actors. Indeed, I don't think they view themselves that way even when they act that way. (I don't think the majority in Bush v. Gore, for instance, believed that they were issuing a political decision even if they in fact were doing so.)

      And on balance, this may be a good thing. Yes, I know, lots of Supreme Court decisions are political. But justices are not like partisan members of Congress; they do sometimes break with their team and you see all sorts of strange bedfellow alignments and some unanimous decisions on what were expected to be contentious issues. We don't want to discourage that. We want them to call them as they see them. Indeed, if anything, we want to discourage the partisan decisions that don't.

      Pressuring a Supreme Court justice to resign for the good of the team is asking the justice to change his or her job description in a pretty fundamental way.

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    2. It's not "for the good of the team". It's just asking Ginsburg whether she cares who replaces her and what her legacy is. If she thinks the next president will appoint a better judge than Obama would, by all means wait. If she doesn't care, then don't care. But the people calling on her to retire are doing so because they think she's a good justice and they hope her legacy will continue--that whoever occupies her seat next will be like her.

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    3. There's really nothing funnier than right-wingers whining about partisan hacks.

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  2. Yeah, I think you could say Justice Ginsburg has a somewhat naive view of judicial politics and a an wrongly Whiggish view of history. There is such a thing as reverses. Things don't always get better, and if Ginsburg and Breyer are replaced by Republican Presidents, they will get much, much worse for the American people.

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  3. If Ginsburg actually thinks that "long-view" argument makes any sense, that worries me even more than that she's 80.

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  4. Jonathan, politics aside, I think there's a bit of a different way to look at this: it's very difficult to bet on your own demise. And that's essentially what Ginsburg and Breyer would be doing, betting they won't be around much longer or won't be competent much longer.

    I think that's a very difficult mindset to get around.

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  5. Good comments, I agree with Chris and Dilan above, and would only add that in a hyper-partisan era there still must be something more to being a Supreme Court justice than simply counting heads. Surely, like anything else in life, one gets significantly better at being a Supreme after 20+ years on the job.

    For a highly pertinent example: consider the most consequential decision of the Roberts Court. Who provided Roberts the succor that the tax solution would solve their ACA problem? Leaving aside his clerks or other legal scholars, if we make the plausible assumption that neither Sotomayor nor Kagan had the juice for that task, it pretty much had to have been Ginsburg or Breyer. We may eventually learn their support was no minor part of the deliberation, and a younger replacement for Ginsburg/Breyer, though actuarially more attractive, would also obviously exert significantly less personal influence over the other members. That's no minor consideration, even in a partisan era, it seems to me.

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    1. For highly pertinent example... just make-up a scenario that you have no evidence for..

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    2. For once I agree with CSH. The interpersonal dynamics on the Court are a crucial aspect of their work. However, Roberts came up with the tax thing on his own. And like very many awfully smart people, he couldn't let go of the thing that he himself discovered.

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  7. I remember a couple of years ago that people were saying Ginsburg should resign because Obama was likely to be defeated--and even if he won, the Democrats would lose control of the Senate or at best keep it by the narrowest of margins.

    The truth is that even if you believe in strategic retirement, you can never be sure when the best time for it is. Yes, the Democrats are almost certain to lose seats in the Senate next year. So from that viewpoint it is better to retire now than in 2015. But Ginsburg may feel she likely has years on the Court ahead of her, and it is certainly conceivable that in 2016 the Democrats will not only retain the presidency but gain as many seats in the Senate as they lose in 2014--or more.

    All this is even leaving aside the objections that have been noted here to viewing justices as members of a liberal or conservative team who should want to be replaced by clones from the same team. For some reason, justices--while they are of course aware that they agree far more often with some other justices than with others--do not think that way. They think they are individuals and that their individual opinions matter. I guess that's because they are lawyers rather than political scientists. Yet maybe even political scientists might try thinking of them that way. If they did, they might be less surprised when justices depart from the ideological script they are expected to follow, like Roberts on the individual mandate or Kagan and Breyer on Medicaid expansion. Instead of seeing horse-trading in such votes, they might actually consider the possibility that the justices thought therir votes were right on the law.

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  8. I should have put this in the post, but this is hardly crazy talk.

    Most justices in the most partisan era have retired strategically: Sutter, O'Conner, Stevens, Powell, Blackmun. Stewart and White, too, most likely.

    The big exceptions were Brennan and Marshall -- both at advanced age and ill health, deep into a GOP string of presidents, with the incumbent looking very safe for reelection, and both early in the clear partisan age of nominations.

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  9. Bernstein seems to assume that all Supreme Court retirements are 'strategic" if they are made under a Democratic administration for a liberal justice or under a Republican one for a conservative justice. But that is not necessarily true. Just maybe Justice O'Connor was telling the truth when she said she wanted to spend more time with her husband, who was suffering from Alzheimer's. Stevens was 90 years old--do people really need to be thinking strategically when they retire at that age? Justice Souter has claimed that he would have retired regardless of who won the 2008 election, and he had indeed expressed a desire to get out of Washington DC and back to new Hampshire well before 2008.

    In any event, for a study which downplays ideological/strategic considerations in the retirement decision, see http://www.quinnipiac.edu/prebuilt/pdf/SchoolLaw/LawReviewLibrary/06_30QuinnipiacLRev131(2011).pdf

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  10. I don't know about your 'now' but my 'now' includes an end to DOMA, as it affects me, and no obvious way it'll affect me in the future.

    That sure seems like an 'end' to me. I'll get to file taxes like anyone else, and no longer be paying a $10K penalty.

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  11. My best guess is that Breyer and Ginsburg find being a Supreme Court Justice deeply satisfying, and that they feel their lives would be much less interesting and have less meaning if they retired. I suspect Rep. Hall (R-TX 4) and Rep. Dingell (D-MI 12), both World War 2 veterans, are running for re-election to the House in 2014 at ages 91 and 88, respectively, for similar reasons. For that matter, I am still working at my hedge fund job at age 62, with no near term plans to retire, because I enjoy my job, and my life would be less interesting without it, although I could retire now and live comfortably for the rest of my life. It is a lot to ask for someone in good mental and physical health to give up a job they love for ideological reasons.

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    1. Ralph Hall, the oldest person ever to serve in the US House of Representatives, now asks to be elected to just one more term in 2014, pledging to retire in 2016 at age 93.

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