Tuesday, February 21, 2006

'Til Death Do They Part?

Hugh Hewitt comments today on the potential retirement of Justice John Paul Stevens:

The most persuasive argument for his retirement is that the Court has a tradition of the justices not hanging on until they die on the bench. Some do, but most retire, a tribute to the idea that the law does not depend upon the composition of the nine justices.

This tradtion [sic] may have become a casualty of the politicization of the court, and surely no one will blame any conservative justice for staying until his or her last breath if this becomes the tradition of the justices on the left.

With all due respect to Hewitt, who is a constitutional-law professor, this is just plain wrong. Of the 101 justices through Sandra Day O'Connor who have left the bench since the Court's inception, 50 have died on the bench. Does that constitute a "tradition"? If Hewitt wants to speak only of the past half-century, he's on more solid ground. William Rehnquist was the first justice, chief or associate, to die in office since Fred Vinson in 1953. But of the eighty-four justices who took office before Vinson, more than half -- 48 in all -- died on the bench, including the eminent John Marshall.

Nevertheless, while the past fifty years point to something like a tradition of retiring from the Supreme Court, this undercuts Hewitt's second paragraph: even as the Court has become more politicized in recent decades, retirement is more prevalent than in earlier periods. Moreover, it was Rehnquist, a justice of the right, who broke any supposed tradition of retirement and who set a precedent (if indeed it becomes one) of until-death-do-we-part service on the Court. Even in the case of Rehnquist, it does not seem to have been politics (a like-minded successor was possible as early as 2001) that kept him on the Court until his death but, rather, either a commitment to the institution or perhaps a desire to shoot for the longevity records.

This isn't to deny that politicization isn't keeping Stevens on the Court into his mid-eighties, and maybe he'll be the first to retire in January 2009 (he'd be 88) if a Democrat is inaugurated. Then again, perhaps he, like Rehnquist, enjoys serving and intends to continue doing so as long as his mind holds out. No one could blame him for that. Tradition or not.

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