There’s no such thing as a guaranteed Supreme Court vacancy

Analysis by Joan Biskupic, CNN Chief Supreme Court Analyst

(CNN) — Supreme Court justices do not go easily.

With the presidential election nearing a climax, speculation has grown over new appointments to the country’s highest court. But imminent vacancies are far from guaranteed.

The power to decide the nation’s law is difficult to relinquish.

“The great ones get their backs up,” observed Georgetown Law professor Brad Snyder, author of a Felix Frankfurter biography and a scholar of the 20th century court, referring to retirement pressure. “They say ‘No one can do this job as well as I can.’”

The historical pattern endures. Of the last dozen vacancies, dating to 1990, more than half were caused by a death or illness. Two of the last four justices to leave the bench died while serving – Antonin Scalia and Ruth Bader Ginsburg – and most of the last dozen were at least age 80.

“I’m getting old and coming apart,” Justice Thurgood Marshall told reporters when he announced in June 1991 that he would be retiring. He was about to turn 83.

For that liberal civil rights trailblazer, the first Black justice, the vicissitudes of personal health overcame any reluctance to leave while Republican George H.W. Bush was in office and could name his successor. Bush chose Clarence Thomas, an ardent conservative whose approach to the Constitution and civil rights remedies has been the opposite of Marshall’s.

Now age 76, Thomas is the oldest of the current nine justices, followed by Samuel Alito, 74, and Sonia Sotomayor, 70. Chief Justice John Roberts will turn 70 in January.

While the three have passed the average retirement age, they are still in their prime at the Supreme Court, an institution that reveres seniority.

Thomas and Alito are part of a dominant right-wing bloc overhauling the law in America, including the reversal of abortion rights. That bloc has also ended racial affirmative action in college admissions and diminished the authority of federal regulators to set workplace, consumer and environmental policy. It has also changed the court’s direction on multiple culture war issues involving religion.

In short, Thomas and Alito hold formidable positions on the coalition that is reshaping the legal landscape.

Sotomayor, a liberal, falls on the losing side, to be sure, but she is in a position of seniority giving her the authority to assign a dissenting opinion and take the lead for the left wing.

Even with the frustrations that come from internal dissent or growing public criticism, justices are loath to surrender the role.

“They are trying to keep power, and they are trying to stay relevant,” Snyder said. “They are also trying to stay alive. These are people who live to work. You take away their job and they are no longer living to work.”

Not all presidents get vacancies

Yet new presidents eagerly anticipate openings so that they can make their mark with a life-tenured appointments. President Joe Biden, who named the first Black woman to the bench in 2022 (Ketanji Brown Jackson), predicted in June, “The next president is likely to have two new Supreme Court nominees.”

But such talk is just that. Talk.

Despite election-season predictions to the contrary, President George W. Bush saw no vacancies in his first four-year term, and Barack Obama had none during his second, even after a subtle overture to Ginsburg during a 2013 lunch at the White House. Jimmy Carter, who served only a single term, never had the opportunity to appoint a Supreme Court justice.

Trump filled a vacancies, however, in his single term, two of those arising from deaths of conservative and liberal icons: Scalia, who died unexpectedly in 2016 while at a Texas hunting ranch, and Ginsburg, who died in 2020 of pancreatic cancer.

Chief Justice William Rehnquist similarly died while in office, after nearly a year fighting thyroid cancer and resisting retirement. After his September 2005 death, he was succeeded by the like-minded Roberts.

Ginsburg’s forestalling of retirement produced more significant consequences. When she died at age 87, Trump replaced her with Amy Coney Barrett (four decades younger) and secured a conservative supermajority.

The Ginsburg situation subsequently accelerated liberal pressure on her fellow octogenarian Stephen Breyer to retire while Democrat Biden occupied the White House.

Breyer, then 83, was still enjoying the job when he announced he would retire in 2022. He understood the reality of life in his 80s. As his predecessor, Justice Harry Blackmun, had remarked when he retired in 1994 at age 85: “It’s not easy to step aside, but I know what the numbers are, and it’s time.”

Shortly before Breyer retired, he told CNN in an interview that his primary consideration would be the state of his health. Breyer has since explained justices’ interest in longevity by emphasizing the judicial long game, that cases build on cases, and that justices become more confident with the years.

“You learn that the applause dies away very fast when you’re there,” he has said. “After two or three years, I was at some kind of meeting when a young student came up to me and said, ‘Oh, judge, I love your opinions. Would you sign my program?’ I said sure. I signed it. Then he turned to his friend and held up four fingers and said, ‘That makes four!’”

Why justices quit

Justices have made it clear over the years that they favor likeminded successors – even former law clerks, as has been a pattern in recent years. (Breyer, for example, was succeeded by Jackson, his former clerk; four years earlier, retiring Justice Anthony Kennedy was succeeded by Brett Kavanaugh, who had clerked for him.)

So the politics of who holds the White House matters.

With today’s bench, that means that if Republican Trump were to win, Alito and Thomas would be more inclined to consider leaving; if Democrat Kamala Harris wins, Sotomayor. Friends of the three say those justices have, at times, mused about election forecasts and individual retirements but suggested a tenor reflecting casual thoughts rather a concrete plan.

The more obvious determinant is individual health.

Current justices resist sharing health information or explaining sudden absences from oral arguments or other public events.

The current nine appear healthy, but it is difficult for any outsider to really know their personal situations. In 2022, Thomas was hospitalized for a week with what court officials described as an infection. In 2020, Roberts was hospitalized for a head injury after a fall at a Maryland country club; a court official said that the fall, which became known only after The Washington Post received a tip, was unrelated to epileptic seizures Roberts had previously suffered, the first reportedly in 1993.

Sotomayor, who was diagnosed with Type 1 diabetes at age 8, has spoken at times, particularly to audiences of children, about managing the condition; in 2018, paramedics were called to her home for what a court official said were “symptoms of low blood sugar.”

Justice John Paul Stevens, a 1975 appointee who for years was the subject of retirement rumors, held out until 2010. After stumbling over the words of a dissenting opinion (in the Citizens United v. Federal Election Commission case) he was reading from the bench in January that year, he knew his time had come.

Stevens later disclosed in his memoir that he learned he “had suffered a mini stroke.” The justice then told Obama he would leave at the end of the annual session, in June.

Stevens was age 90 when he retired. Twenty years earlier, in 1990, Justice William Brennan made a more abrupt retirement announcement after he had a small stroke while vacationing. He was 84 when he notified President George H.W. Bush he would immediately retire.

Justice Sandra Day O’Connor was only 75 in July 2005 when she announced her plans to leave the bench. But she said her husband was suffering from Alzheimer’s disease and she wanted to spend more time with him.

Justice David Souter is a modern exception.

He retired in 2009 at the relatively youthful age of 69. The erudite New Hampshire bachelor had never quite adapted to the ways of Washington.

His brief resignation letter offered no reason for his departure. And for the next decade, Souter occasionally heard US appellate court cases. He declined to respond to CNN’s recent queries regarding his thoughts on why most justices hold on to the job longer.

Perhaps revealing of Souter’s mindset, a few weeks after he informed Obama, Souter told an audience at a legal conference, “For most of us, the very best work that we do sinks into the stream very quickly. We have to find satisfaction in being part of the great stream.”

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