John Paul Stevens to Retire During Obama Presidency

In this Sept. 29, 2009, file photo Associate Justice John Paul Stevens sits for a new group photograph at the Supreme Court in Washington. Stevens, the oldest justice who turns 90 this April 2010, says he'll decide soon about retiring, for his own peace of mind and to give President Barack Obama and the Senate plenty of time to replace him. (AP Photo/Charles Dharapak, File)

In this Sept. 29, 2009, file photo Associate Justice John Paul Stevens sits for a new group photograph at the Supreme Court in Washington. Stevens, the oldest justice who turns 90 this April 2010, says he'll decide soon about retiring, for his own peace of mind and to give President Barack Obama and the Senate plenty of time to replace him. (AP Photo/Charles Dharapak, File)

John Paul Stevens announced yesterday that he will step down in time for President Obama to choose his successor.

Supreme Court Justice John Paul Stevens says he “will surely” retire while President Barack Obama is still in office, giving the president the opportunity to maintain the high court’s ideological balance. Stevens said in newspaper interviews on the Web Saturday that he will decide soon on the timing of his retirement, whether it will be this year or next. Stevens, the leader of the court’s liberals, turns 90 this month and is the oldest justice.

His departure would give Obama his second nomination to the court, enabling him to ensure there would continue to be at least four liberal-leaning justices. The high court is often split 5 to 4 on major cases, with the vote of moderate Justice Anthony Kennedy often deciding which side prevails.

“I will surely do it while he’s still president,” Stevens told The Washington Post.  But Stevens, who was named to the court by Republican President Gerald R. Ford in 1975, says he still loves the job, and says he continues to write the first draft of his own opinions. Stevens says if it ever gets to point where he stopped doing that, it would be a sign he wasn’t up to the job anymore.

[…]

“I do have to fish or cut bait, just for my own personal peace of mind and also in fairness to the process,” Stevens told The New York Times. “The president and the Senate need plenty of time to fill a vacancy.”

It has been common practice in recent years for Justices to do their best to time their departures according to which party controls the White House.  I don’t know, however, that a sitting Justice has ever brazenly admitted to the fact.  Certainly, it belies the notion — always a fiction — that the Supreme Court is apolitical.

What’s interesting is how many recent retirements of Justices appointed by Republican presidents have come during Democratic administrations.   The most recent retiree, David Souter, was nominated by  George H.W. Bush in 1990 but chose to wait out George H.W. Bush and retire in the first months of the Obama presidency.  Stevens was appointed by Gerald Ford.   Lewis Powell, a Nixon appointee, retired during Bill Clinton’s presidency.  Ditto Harry Blackmun.  It’s been a long time since a Justice appointed by a Democrat voluntarily (i.e., for reasons other than rapidly declining health) during a Republican presidency.

FILED UNDER: Law and the Courts, US Politics
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Janis Gore says:

    What I see is that they typically live the rest of their lives on the court once appointed.

    Maybe he’s slipping in ways he doesn’t want to describe to the public.

    My husband’s parents have both reached 90. His dad died last year, a month or two after his birthday. He was forced to retire at 79 and still thought the young’uns weren’t up to speed.

  2. Dantheman says:

    James,

    “It’s been a long time since a Justice appointed by a Democrat voluntarily (i.e., for reasons other than rapidly declining health) during a Republican presidency.”

    That’s simply a function of no Supreme Court Justices were appointed by a Democratic President between 1967 and 1993, while Republicans appointed 9 men to 10 seats in that time (Rehnquist was appointed to the Court by Nixon, and was appointed Chief Justice by Reagan). Since very few justices in the last 40 years have served less than 15 years, this limits the field to White (appointed by Kennedy and successor appointed by Clinton), and Marshall (appointed by Johnson and resigned in failing health to have successor appointed by Bush the Elder.

    And of course, it removes from the equation William Brennan, who was always a Democrat, even though appointed by Eisenhower in an attempt to swing the Catholic vote before the 1956 election, and who lived 7 years after his retirement.

  3. The Florida Masochist says:

    Hugo Black was appointed by FDR in 1937(?) and resigned from the court during the Nixon administration but he died a few days later.

    Abe Fortas was appointed by LBJ and resigned under because he took a retainer(while he was a sitting justice) from a financier who who was being investigated.

    William O Douglas was appointed by FDR and resigned when Ford was President. Douglas had suffered a stroke and was for a time unwilling to step down.

    I think Stanley Reed was a FDR appointee. He cited old age when he stepped down while Eisenhower was President but lived over 20 years after leaving the court.

  4. steve says:

    When it comes to SCOTUS decisions, the Constitution and precedent are often irrelevant. You can usually predict how they will vote just by their ideology. Should be really interesting when Kennedy retires.

    As an aside, the Supremes do not even attempt to avoid the appearance of conflict of interest or influence now. They often attend parties or go to functions with the leading pundits from their side of the political spectrum. Their wives are now political activists.

    Steve

  5. Raoul says:

    That old republicans are retiring during a democrat tenure is indicative how far right the party has moved that even these individuals can’t take it.

  6. Janis Gore says:

    steve, my lawyer-husband says that the Supremes stand about ten years behind public opinion.

  7. anjin-san says:

    I found out where Bithead learned his history:

    http://www.youtube.com/watch?v=Xfi4s8cjLFI

  8. Zelsdorf Ragshaft III says:

    Anjin, you never did learn history, so bithead is further advanced than yourself. Anjin studied out of the communist manifesto of Marx and Engels. History is only as they see it not as it happened. Stevens, were he a true jurist not an ideologue for the left would retire during the administration of the party which nominated him. Liberals alway use fairness as a talking point however that is just talk which has no point. Cannot wait for Anjin tears in November. What lies will be told.

  9. […] was talking about the health care debate, but now that John Paul Stevens has announced his intention to retire, look for Legislative Hypocrisy II:  Son of Hypocrisy to hit DC and hit it […]

  10. Grewgills says:

    Stevens, were he a true jurist not an ideologue for the left would retire during the administration of the party which nominated him.

    So if he weren’t an ideologue he would time his exit to coincide with your ideological choice. Brilliant.

  11. UlyssesUnbound says:

    Liberals alway use fairness as a talking point

    Yeah!! Stupid fairness! Liberals and their concern for equity and justness. Assholes are what they are!

  12. Herb says:

    Cannot wait for Anjin tears in November.

    Zelsdorf unwittingly exposes the Republican platform. “Vote for me! I’ll make a liberal cry!”

    Something tells me that in November the “Party of Hell No” is going to re-learn an ancient lesson about counting their chickens. It will end in tears, no doubt, tears so effusive that we’ll be able to bottle them and have ourselves one hell of a Tea Party.

  13. anjin-san says:

    Liberals alway use fairness as a talking point

    Look, the dow is headed for 11k & the bleeding from the Bush/conservative job hemorrhage may finally be under control. Naturally the right is furious. I guess they have to talk about something…

  14. KJ says:

    Justice Powell resigned during President Reagan’s second term. He was eventually replaced by Justice Kennedy. Justice White (JFK appointee) and Justice Blackmun (Nixon appointee) resigned during Clinton’s presidency, but both were in relatively good health. White sided with conservatives on many law and order issues and substantive due process cases over the years, while Blackmun drifted to the left after authoring Roe v. Wade.

    Keep in mind also that Democrats haven’t exactly had a lot of opportunities to appoint justices to the Supreme Court in the last 40 years, so that may be why not many Democratic appointees have resigned when Republicans held the White House. Finally, recall Justice O’Connor, a Reagan appointee, resigned during President Bush’s second term and during the 2000 election was overheard as saying she was wary about handing her seat to a Democratic president.