Justice Antonin Scalia in 2005.  (J. Scott Applewhite/Associated Press)

 

Last week marked the passing of the Supreme Court’s conservative bloc stalwart, Justice Antonin Scalia.  The shock of his unexpected death so late in President Obama’s second term has already led some Republicans to vow not to replace Scalia until after the 2016 election.

Although the shock over Scalia’s death is unquestionably warranted, the death of a sitting Supreme Court justice was actually a common event during the court’s first century.  In fact, nearly 70 percent of Supreme Court vacancies before 1900 were the result of a justice’s death while in office. Since the Kennedy administration, however, there have been only two such deaths: Chief Justice William H. Rehnquist in 2005 and now Scalia.

This change derives in part from a change in the laws that govern federal judges’ eligibility for pensions. The relevant statute, 28 U.S.C. § 371, was amended in the mid-1950s and allows federal judges, including Supreme Court justices, to retire with full pay as long as their age at retirement is at least 65 and their age plus their years of service equals 80 years. This gave judges more financial security and allowed them to base their decision about retirement on other considerations.

One of these considerations is, put simply, politics. What scholars call the “political departure hypothesis” says that judges and justices will wait to retire until they can ensure that the president and the Senate will replace them with someone like-minded. In other words, judges shouldn’t retire until their party controls the nominations process to the extent possible.

For this reason, Supreme Court justices tend to retire under a president of the same party as the president who nominated them. Sandra Day O’Connor was nominated by Ronald Reagan, and she retired under George W. Bush.

Similarly, they tend to retire when the incumbent president has a ideology more akin to theirs, even if the party is different. David H. Souter was nominated by a Republican president, George H.W. Bush, but retired under Obama — a predictable decision given that Souter ended up more liberal than conservative.

Of course, there are exceptions even besides Scalia. Ill health alone makes some retirements deviate from the political departure hypothesis. For example, William O. Douglas, an FDR appointee, had a debilitating stroke and retired when Gerald Ford was president. The avowedly liberal Thurgood Marshall retired under George H.W. Bush, who replaced him with the strongly conservative Clarence Thomas.

Such cases are important because they are unusual. Most justices voluntarily leave the bench, and often choose to do precisely when they can be assured of an ideologically congenial replacement. But as Scalia’s death demonstrates, unforeseen events can make such political considerations moot.

Scott Boddery, JD, PhD, is a visiting assistant professor of political science at Davidson College.