A Recent Supreme Court Tradition

Potter_Stewart_(1915_-_1985)In my draft article, I talk about the anti-partisan customs followed by the Justices.  One that I’ve posted about before is the practice that justices do not retire in a presidential election year.  This is a recent development, as they did retire in those years until Earl Warren’s ill-fated attempt to do so in 1968.

This led me to wonder when people started saying (or thinking) that Justices should not retire in a quadrennial year.  The answer is that this custom began with Potter Stewart.  Justice Stewart retired in 1981, and in an interview with Linda Greenhouse that summer he said he had thought of quitting in 1980 but decided that to do so would hurt the Court.  As far as I can tell, this was the first time that a Justice decided that this was a necessary norm and said so publicly.  Nobody was thinking about retiring in 1972 or 1976, so the absence of action in those years does not tell us much.  Since then, the Justices have followed Stewart’s example and rejected Warren’s.

One other thing–the convention of “no retirement in an election year” effectively precludes a Justice from being nominated for president or vice-president (as Charles Evans Hughes was and William O. Douglas wanted to be).  Nobody would tolerate a sitting Justice campaigning on the national–he or she would have to resign.  But then that would create an election year vacancy.


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