Opinion | How Judicial Retirements Politicize the Courts

A past survey of active and retired federal judges asked them to report the degree of importance they attached to the party of the president in power when deciding when to retire. Nearly all judges reported that they did not consider this as a factor in the timing of their retirement. A study published in 2006 concluded that judicial retirement patterns had to do with pension eligibility and that “By comparison, political and institutional factors appear to have little influence on turnover rates.”

In our study, a working paper on the role politics might play in retirements and resignations, we considered not just whether judges retired the year before or after an election, as other researchers had done, but also whether they retired in the first quarter before or after an election.

Using data from 1802 to 2019, we examined whether judges’ resignations and retirements corresponded with electoral cycles. Between 1802 and 1975, we found that relative to the regular distribution of departures from the bench over time, an additional 6 percent of all judicial exits coincided with electoral cycles and appear to have been politically motivated. In other words, the political affiliations of the exiting judges, measured by the party of the president who appointed them, were the same as the sitting president’s.

We saw a significant uptick in what appear to be politically motivated retirements since the 1970s — a historical inflection point coincident with Roe v. Wade and the ascent of right-wing evangelical politics — that has continued to intensify. Of 273 federal judicial retirements between 1976 and 2019, 14.7 percent, representing 40 lifelong appointments, deviated from the regular pattern of retirements in a way that ensured that the retiring judge’s replacement would be nominated by a president who shared the judge’s party affiliation. Such retirements are seen across both political parties, with Republican-affiliated judges slightly more likely to indulge in this partisan behavior.

Politically motivated departures from the bench are both a symptom and a cause of the increasing polarization of the courts, and there is no reason to believe this feedback loop can be changed without some mechanism to force it. Term limits for Supreme Court justices and federal judges, widely used around the world, would help counter the evaporating legitimacy of the courts. So too would staggering retirements randomly rather than leaving them up to judicial discretion. And proposals to increase the number of justices on the Supreme Court as a corrective to its politically engineered rightward drift should not be dismissed as radical.

It is vital that lawmakers and judges acknowledge that instituting substantial changes to the Supreme Court and the broader judiciary is not a threat to the integrity of American law. It is instead an essential step toward counteracting its accelerating demise and protecting the ideal of democracy it claims to support.

Eric Reinhart (@_Eric_Reinhart) is a political anthropologist, psychoanalyst and resident physician at Northwestern University and a lead researcher in the Data and Evidence for Justice Reform program of the World Bank. Daniel L. Chen is a professor of law and economics at the Toulouse School of Economics and Institute for Advanced Study in Toulouse, France, and the lead principal investigator in the World Bank’s justice reform program.

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