CQ WEEKLY – IN FOCUS

CQ WEEKLY – IN FOCUS
April 12, 2010 – Page 891

Stevens Puts Spotlight on High Court Exit Strategy

By Seth Stern, CQ Staff

In the weeks before announcing his retirement, Justice John Paul Stevens engaged in an unusual collection of public musings with the press about the timing of his departure, making clear he was choosing between this year or next. While appearing in decent health in the days before his 90th birthday, which is next week, he said he had no desire to stick around until July 2012, when he would become the longest-serving justice in American history.

The leader of the court’s liberal wing, Stevens never hid his desire to be succeeded by the nominee of a Democratic president. But he never mentioned two other factors that almost certainly influenced the timing of his retirement this summer — the sort of issues, rich with political meaning, that have long shaped the final acts in Supreme Court tenures.

The first is that Stevens almost certainly wanted to prevent the debate over his would-be successor from occurring in the shadow of the 2012 campaign, when any nominee being promoted by President Obama would be sure to face particularly intense scrutiny from Senate Republicans. The other was to try to do as much as possible to guarantee that two seats don’t come open in one term. That is still possible, should the health of the next-oldest justice — 77-year-old Ruth Bader Ginsburg, who was treated for pancreatic cancer last year — prompt her to depart unexpectedly.

“What Stevens is doing confirms the idea that politics matter to him, and that the institution matters,” said Artemus Ward, a political science professor at Northern Illinois University and author of a book on Supreme Court retirements.

This kind of strategic behind-the-scenes thinking, combining personal and political considerations along with the court’s institutional needs, typically guides such decisions by the justices, whose life tenure gives them the freedom to exit at any moment of their choosing. For some, the deciding factor is their declining health or, in the case of Sandra Day O’Connor, that of a spouse. Others, such as David H. Souter, the most recent to depart, hold out until a president of their liking occupies the White House. That goal eluded Souter’s predecessor, the liberal icon William J. Brennan Jr., who did not want President George Bush to fill his seat but felt compelled to depart in 1990 after suffering a stroke.

Although such decisions have enormous potential to shape the dynamics and jurisprudence of the high court, they are left entirely in the hands of each individual, although some justices may be amenable to the views of their colleagues. Unlike with judges on the lower federal courts, there is no law setting out a process for involuntarily removing an incapacitated justice.

But informal norms do guide the process. If at all possible, justices announce retirements at the end of a court’s annual term, in late June or early July, which ensures a full complement of nine justices during that term and should provide sufficient time for the confirmation of a successor before the start of the next term in early October.

Justices also try to prevent more than one vacancy at a time. That explains why, when O’Connor announced her retirement in July 2005, Chief Justice William H. Rehnquist stayed on even though he was gravely ill with thyroid cancer. Although he died two months later, Rehnquist apparently succeeded in accomplishing another goal. In her 2007 book about the court, Jan Crawford Greenburg says O’Connor decided to retire only after Rehnquist assured her he planned to remain for another term. That appeared to be a calculated move to ease O’Connor out and make room for another, more conservative justice.

Self-Evaluation

Stevens, who is now in his 35th term as a justice, had told The New York Times he would deem himself no longer fit for the court when he stopped writing his own first drafts of opinions, which he said hasn’t happened. But in the absence of any formal rules, little prevents justices from staying past the point when deteriorating health interferes with their ability to do the job.

After Stevens’ predecessor, William O. Douglas, suffered a debilitating stroke in 1974, his colleagues agreed to strip him effectively of his influence by delaying consideration of cases in which his vote could decide the outcome. Douglas stepped down nearly a year later but even then unsuccessfully tried to continue participating in cases.

David Atkinson, a professor of law and political science at the University of Missouri at Kansas City, says some justices, including Douglas — whose 36 years and six months on the court remain the record — come to view themselves as indispensable. “They develop a sense of entitlement, or enjoy the power or the attention,” Atkinson said.

But more often, politics rather than ego explain why a justice tries to retire at a particular time. Souter, who was succeeded by Sonia Sotomayor last fall, was only the most recent in a line of justices who waited to leave until early in the tenure of a president of their liking. Potter Stewart, the product of a prominent family in Ohio Republican politics, retired in the first year of Ronald Reagan’s presidency, for example, while Byron R. White, a John F. Kennedy nominee, left in the first year of Bill Clinton’s presidency.

But such calculations don’t always work out as planned. Earl Warren’s 1968 attempt to ensure that Lyndon B. Johnson would name his successor as chief justice ultimately failed when the Senate rejected the lame-duck president’s attempted elevation of liberal Associate Justice Abe Fortas. Instead, it was Warren’s old California political nemesis, Richard Nixon, who selected a considerably more conservative chief justice, Warren E. Burger.

In the past, justices were likely to take into account a more personal calculation: their retirement savings. In the mid-20th century, several of them held out despite failing health until they had served long enough to collect full pensions. Federal judges older than 65 and with 15 years on the bench may now retire with full pay and benefits.

Pension eligibility has become less of a factor in the past three decades; every new justice since O’Connor has been a relatively young federal appeals court judge. As a result, four of the current justices would be allowed to retire with full pay on their 65th birthdays. And with the life expectancy of justices approaching 90, Ward says, “it gives them a long window in which to think about timing it.”

Two decades ago, Brennan, another octogenarian liberal stalwart, found himself weighing a set of personal and political considerations similar to the collection Stevens confronted this spring. Both justices were nominated by Republicans, Brennan by Dwight D. Eisenhower in 1956 and Stevens by Gerald R. Ford in 1975. But each hoped to be replaced by a Democrat, having emerged as the most influential liberal on the court during their tenures.

Brennan’s Decision

Brennan first thought seriously about retiring in the late 1970s, as his first wife battled cancer while he recovered from both cancer and a stroke. But his resolve to stay on the court only deepened after Reagan’s election in 1980. By his 84th birthday in April 1990, when Brennan was on the verge of finishing his 34th term, the next time a Democrat might appoint his successor was nearly three years away.

Publicly, Brennan continued to insist that he loved his job and had no intention of leaving. But privately, he was giving more serious thought to departing than he told reporters. His second wife wanted to travel and settle in a warmer climate while he was still vigorous. Though six years younger then than Stevens is now, Brennan had experienced more serious health problems, including a case of shingles and gallbladder surgery. He tired more easily, didn’t remember the names of cases as quickly as in the past and had lost some of his interest in his work after two decades as the leader of the court’s dissenting wing.

Brennan had been dismayed at the course his ideological ally Douglas had chosen at the end of his service, and he thought back to the stories he had heard as a young attorney in New Jersey about Justice Mahlon Pitney, brother of a founder of Brennan’s old law firm, who stayed on the court for several months after a debilitating stroke in 1922.

On the other hand, Brennan worried about the potential impact of his retirement on his secretary and clerks — and imagined growing bored without his work. He had every intention of returning in the fall of 1990, then left abruptly after suffering a stroke that summer. His doctors warned that additional strokes were likely if he stayed on the job.

That October, Brennan attended the first oral argument of the new term as a spectator, an experience he later described as heartbreaking.

Stevens had been more explicit than Brennan ever was about the likelihood and probable timing of his retirement. He had not hired his usual contingent of four clerks for the next term and told reporters he planned to give the president and the Senate plenty of time to fill his seat. Stevens remains remarkably active and far more robust than other recent justices who stayed on the court into their 80s, such as Brennan or Thurgood Marshall, whose health was failing by the time he retired in 1991 at age 83. In one recent interview, Stevens noted a couple of signs that he might finally be feeling his age: a touch of arthritis in his knee and a tennis game that isn’t what it once was.

But although he stumbled over his words in January as he delivered a passionate dissent from the bench in the court’s landmark campaign finance decision, he has asked questions deftly at more recent oral arguments.

Now that he’s opted to leave the Court this year as the fourth-longest-serving justice ever, it’s clear his decision is not due to any obvious signs of physical decline.

Stern and Stephen Wermiel of American University’s law school are the authors of “Justice Brennan: Liberal Champion,” a biography to be published in October.

FOR FURTHER READING: Souter’s successor, CQ Weekly, p. 50; O’Connor’s successor, 2006 Almanac, p. 16-3; Rehnquist’s successor, 2005 Almanac, p. 14-3; Brennan, 1990 Almanac, p. 510; Stevens confirmation, 1975 Almanac, p. 536.