Last week Justice Ginsburg made some news by telling people to buzz off about her retirement plans. Lots of criticism gets directed at the Justices for timing their retirements to fall when the political party that they prefer holds the White House. Less attention is given, though, to the Justices who mess up that judgment.
Exhibit A: Earl Warren. In 1968, he announced his retirement from the Court. Lyndon Johnson tried to replace him with Abe Fortas, but that went nowhere because it was an election year and because of Johnson’s weak political standing. As a result, Richard Nixon ended up choosing Warren Burger as the next Chief Justice. (Parenthetically, is there a modern Justice with a poorer reputation than Burger? Does anybody like that guy?)
Here’s the question. Why didn’t Warren retire earlier? He was not ill in 1968, so the retirement was more about politics. The answer must be that Warren thought LBJ would be reelected in 1968. By the time he realized that wasn’t going to happen, it was too late. A big mistake for a savvy guy who was Governor of California.
Exhibit B: Thurgood Marshall. He retired in 1991 and was replaced by Clarence Thomas. Marshall was in poor health by then, but he lived until 1993. Why didn’t he try to outlast the Bush 41 Administration? Probably because in the summer of 1991 Bush looked invincible with his high post-Gulf War approval ratings. It was not unreasonable for Marshall to think that it wasn’t worth the effort to hang on anymore.
I took Justice Ginsburg’s recent comments to mean that she would not let these sorts of political considerations affect her decision, not that she was confident that a Democrat would be elected President in 2016 and so did not need to retire now. One thing that seems certain is that Kennedy and Scalia aren’t going anywhere.