Supreme Miscalculations

93px-Earl_Warren_Portrait,_half_figure,_seated,_facing_front,_as_GovernorLast 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.

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9 Responses

  1. anon says:

    I wouldn’t under-estimate the effect of O’Connor’s decision has had on Ginsburg’s decision to keep going.

  2. Joe says:

    Marshall was in poor health and died a few days after Clinton was sworn in (Marshall was asked to swear in Gore, but was too ill). He was to be blunt lingering in 1991, already hanging on then even after Brennan retired in part to outlast Bush. I think health was the primary reason — as he said so at the time (“I’m falling apart” or some such) — he retired.

    I don’t know if Ginsburg deep down will totally disregard political matters here. But, the talk is getting a bit blatant and either way it is not too surprising she told them to buzz off. Even before Stevens retired, people acted like she was on death’s door. It was a tad much.

  3. Joe says:

    I also would note that Marshall was not even the ‘fourth’ vote in some ways in ’91 once Brennan retired, especially given his views. See, e.g., his impassioned Payne dissent, Souter voting with the majority. Souter also voted with the majority in Rust v. Sullivan. Hanging on as a third vote was yet another reason a tired old man might wish to retire.

  4. JHP says:

    Your speculation on Warren overlooks the timing of his resignation. He offered it in June 1968, more than two months after LBJ had declared that he would not run for re-election. I agree with your overall proposition that Warren miscalculated in thinking that LBJ still had the juice to select his successor. Choosing a sitting Justice, when the Warren Court rulings were exceptionally unpopular with the Southern Democrats.

  5. SCOTUS observer says:

    I think Justice Ginsburg has been a huge disappointment for liberals. She has (generally) voted the right way, but has written almost nothing memorable and has rarely tried to push the law in a liberal direction in the same way as someone like Scalia or Thomas has tried to push the law in a conservative direction. When she retires or dies, she won’t be remembered for long.

    As for her comments on her retirement, her thought process reflects a shocking selfishness and reveals that she is much more concerned about herself than “the cause.” She also can’t be so naive about her own abilities. There is no question that, during at least some arguments this term, her questions were meandering and reflected a mind that wasn’t all there. She’s kidding herself is she still thinks she has it. I hope someone close to her needs to take her aside and talk some sense into her.

  6. Litigator says:

    @5. Justice Ginsburg owes nothing to you or “the cause.” God forbid she act in her best interest at the expense of SCOTUS observer’s political views.

  7. SCOTUS observer says:

    You’re absolutely right that she owes nothing to me, a mere (anonymous!) internet commentator.

    But to the extent she acts in what she perceives is her own best interest at the expense of “the cause,” she is saying something important about herself: that she thinks she’s more important that the ideals that she has purported to spend a lifetime fighting for.

    To pick just one example, by acting in what she perceives as her own self interest, she is putting at risk the right to have an abortion — a right that she herself purportedly thinks is important — for her own aggrandizement. She has every right to make that decision, of course. But it says something about who she is as a person, and what her priorities are. And from where I sit, that’s a contemptible decision and one that I hope stains her legacy as not just a justice, but as a person.

  8. Joe says:

    After serving time as a leader in pushing the law regarding gender equality, Ginsburg has “voted the right way” overall and has in various cases been more left leaning than some of her liberal wing (e.g., on religious questions).

    One place she was a leader was on gender equality questions, including interpreting statutes. See, e.g., her Ledbetter dissent. Another good opinion would be her dissent in Gonzales v. Carthart, which does a great job framing abortion rights. She also used CLS v. Martinez to advance the cause of homosexual equality. Her opinions in the ACA and VRA cases are rightly strongly praised. She wrote passionate concurrence as well involving a female student searched for drugs. A few more voice in the wilderness dissents really would not the cause that good these days.

    I have no evidence her mind is “meandering” as compared to some of the questions of let’s say a Breyer. That’s just her style — it always was somewhat plodding. Listen to her arguing in front of the Supreme Court at Oyez.com, e.g. There is no evidence her abilities are slipping. She also isn’t going to blatantly as judge talk about strategic retirement.

  9. anon says:

    Law professors don’t like Warren Burger because he was comparatively conservative and didn’t have lots of constitutional theories (see, e.g., his splendid opinion in Wisconsin v. Yoder, one of the best decisions every written on the subject, and one that is generally reviled by legal academics).