The myth that justices strategically retire

Abstract

Epstein, Segal, Spaeth, and Walker (1996) argue that “a justice of advanced age enjoying relatively good health may be more prone to retire if the incumbent president is likely to appoint an [ideologically] acceptable replacement.” “Conversely, a justice of advanced age suffering health problems may attempt to postpone retirement,” if an ideologically inappropriate president is in power. Thirty-three justices left the Court since 1937. Twelve of these did so prior to an “advanced age” (i.e., age 70). Of the remaining 21, eight left during the incumbency of an ideologically congruent president and only two of these justices, Burger and Powell, might have strategically retired. In short, the claim that the justices strategically retire is a myth.

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