"For [Justices] Ginsburg and Breyer to risk their judicial legacy on predictions of the outcomes of elections [in 2014 and 2016] is nuts. It's easy to predict what kind of judges a Republican president would select, but political scientists would tell the justices that there's no way of predicting any presidential election two or more years in advance. Yes, both Ginsburg and Breyer could have a dozen, or for all I know two dozen, productive years ahead of them. Yes, they both appear to still be at the top of their games right now. Yes, they would be giving up a lot personally if they stepped down. But the strategic imperative is just as clear as it is harsh. If they care about the principles they have worked for, it's time to step down."
– Jonathan Bernstein, a Washington Post columnist, in an article November 29 urging Supreme Court Justices Ruth Bader Ginsburg and Stephen G. Breyer to "retire right now."
One of the hardest decisions that a Supreme Court Justice must face is when to retire, if they remain healthy and capable of doing the job. Under the Constitution's Article III, of course, they can stay on the Court as long as they live, if they conduct themselves with "good behavior." So they need consult no one at all about when to step down, although most of them do have close confidants who will help them pick the time.
If the design of the Founders is followed, however, a member of the Supreme Court probably should not make the decision based upon what the political class would like, what someone will tell them is the politically expedient time to go. At any given moment in political time, every member of the Court probably disappoints someone who is focused on what is good for this or that partisan agenda, prompting a suggestion to leave the Court.
In politics, in fact, it is quite normal for this or that faction to lay a claim to one or more seats on the court, to have some control over keeping that place in presumed-to-be friendly hands. Why, it is asked, should a justice put on the court by a Republican President, or a Democratic President, give a future President of unknown political persuasion a chance to name a successor?
The media, of course, contributes to this political sentiment by referring to members of the Supreme Court, or of lower federal courts, as "Republican judges" or "Democratic judges." That sort of identification suggests that a President who places a judge on the bench is entitled to have that political investment continually paid off with favorable decisions. If a judge does cast a vote or write an opinion that contradicts a supposed preference of the party that fostered that nomination, it is duly noted in the media with at least the implication of deviation or even betrayal.
In a political era in which Americans are so deeply polarized about their public policy goals, it is easy to overlay that polarization on the courts. In such an era, courts, too, are seen as instruments of government as surely committed to agendas as are the traditional "political branches" – Congress and the White House. Nominations are seen as occasions for further protecting abortion rights, or improving the lot of minorities, or enhancing the power of state governments, or either keeping corporate power in check, or adding to it.
This is a mixture of politics and judging that one of the Founders, Alexander Hamilton, sternly warned against in Federalist Paper No. 78. He wrote: "Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments; that as all the effects of such a union must ensue from a dependence of the former on the latter, notwithstanding a nominal and apparent separation; that as, from the natural feebleness of the judiciary, it is in continual jeopardy of being overpowered, awed, or influenced by its co-ordinate branches; and that as nothing can contribute so much to its firmness and independence as permanency in office, this quality may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of the public justice and the public security."
Within that comment, somewhat awkward in the hearing to modern ears, is the enduring notion that judges must have independence so that they judge according to legal norms and not changing political winds, and that the people's rights will be more secure if judicial independence is used in that way.
One suspects that it would have seemed strange to Hamilton to suggest that members of the Supreme Court should worry about their "legacies," and thus about how to prolong such a record by opting to retire when it is most opportune to get a sympathetic successor.
When an individual takes on a near-lifetime of judging, it is neither naïve nor romantic nonsense to suggest that they should remain focused throughout upon the quality of their judging, on looking after the lasting values of the constitutional order, and – as near as possible – on doing justice.
When, perhaps someday, the judicial selection process in America focuses on filling courts with judges who would pursue that kind of legacy, a basic constitutional design might be vindicated.
Lyle Denniston is the National Constitution Center's adviser on constitutional literacy. He has reported on the Supreme Court for 55 years, currently covering it for SCOTUSblog, an online clearinghouse of information about the Supreme Court's work.