(Part 5--Retirees, past & possible) Court Elders: The Septuagenarian Justices

In this series, we've been looking at the septuagenarian Justices, the younger ones, and the recent retirees. With regard to the retirees--the 10 over the last 25 years--we've focused on their time on the Court and their age when they departed. [See [See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012; (Part 3--the "Yoots"), Dec. 4, 2012; (Part 4--the Retirees), Dec. 6, 2012.]

Now, let's single out the "extreme" retirees--i.e., those were on the Court the longest and the shortest, and those who were the oldest and the youngest at retirement  Then the "average" retirees--i.e., those who represent the average (or the median) time Justices remain on the Court, and who represent the average (or the median) age when they leave.

Here are the extremes:

(click to enlarge)

That's Justice John Paul Stevens, appointed by President Ford and the Court's last retiree, at one end of the range with the longest tenure among the recent retirees. His 34 1/2 years is one of the longest in Court history. (William O. Douglas, an FDR appointee, holds the record at 36 1/2 years.)

Justice Lewis Powell, the 3rd of President Nixon's 4 appointees, is at the other end with his 15 1/2 years being the briefest tenure among the last 10 retirees. (James F. Byrnes, the last of FDR's 9 appointees, holds the record with a mere 15 months.)

As for age at retirement, that's Stevens again at one end as the oldest--and, at 90, one of the oldest retirees in Court history. (Oliver Wendell Holmes, a TR appointee, was several months older--just a few weeks short of his 91st birthday.)

At the other end is President Bush 41's appointee, Justice David Souter, whose retirement at (nearly) 69 years of age makes him the youngest to retire among recent Justices. (Justice Benjamin Curtis, appointed by President Fillmore, was apparently the youngest to leave the Court. He resigned at the age of 47, appalled by the Court's decision in the Dred Scott decision, against which he authored a dissenting opinion.)

[I've summarized the time-on-the-Court and retirement age data for the last 10 retirees in a Table that's accessible HERE.]

(Part 5a--the Table) Court Elders: The Septuagenarian Justices

Table: The Last 10 Retirees

Warren E. Burger	On the Court 17 yrs	Retired 1986 at 79	Died at 87
Lewis F. Powell	15 ½ yrs	Retired 1987 at 79	Died at 90
William J. Brennan, Jr.	33 ¾ yrs	Retired 1990 at 84	Died at 91
Thurgood Marshall	24 yrs	Retired 1991 at 83	Died at 84
Byron R. White	31 yrs	Retired 1993 at 75	Died at 84
Harry A. Blackmun	24 yrs	Retired 1994 at 85	Died at 90
William H. Rehnquist	33 ¾ yrs	Died in office 2005 at 80	Died at 80
Sandra Day O'Connor	24 yrs	Retired 2006 at 75	Currently 82
David H. Souter	18 ¾ yrs	Retired 2009 at 69	Currently 73
John Paul Stevens	34 ½ yrs	Retired 2010 at 90	Currently 92

[As noted in the main post, much of this data is derived from the works of  University Of Virginia Professor Emeritus Henry J. Abraham, including his JUSTICES AND PRESIDENTS (AND SENATORS in later editions).]
Return to the main post HERE.

(Part 4--the Retirees) Court Elders: The Septuagenarian Justices

Thus far in this series, we've taken a look at the 4 septuagenarians on the Court and at the 5 younger Justices. We noted the marked contrast in their respective ages and lengths of service on the Court.
[See Court Elders: The Septuagenarian Justices (Part 1), Nov. 21, 2012; (Part 2), Nov. 24, 2012; (Part 3--the "Yoots"), Dec. 4, 2012.]

We've been doing that primarily to assess the likelihood of vacancies arising in President Obama's 2nd term. With that in mind, let's now review some recent retirements from the Court.

Let's look at the last 10. That would be a quarter century worth of Justices leaving the Court and creating vacancies.

Let's focus specifically on the retirees' ages and how long they'd been on the Court when they departed. Here they are in chronological order:

Warren E. Burger

• Lived 1907-1995, died age 87
• On Court 1969-1986 (Nixon)
• Retired after 17 yrs
• Retired age 79

Lewis F. Powell

• Lived 1907-1998, died age 90
• On Court 1972-1987 (Nixon)
• Retired after 15 1/2 yrs
• Retired age 79

William J. Brennan

• Lived 1906-1997, died age 91
• On Court 1956-1990 (Eisenhower)
• Retired after 33 3/4 yrs
• Retired age 84

Court Elders: The Septuagenarian Justices (Part 1)

[Back from surgery. All went well, thank you.

And thanks to all the wonderful folks at Albany Med.]

With the re-election of President Obama [Disclosure: I'm unabashedly elated.], thoughts turn to the Supreme Court.

For Court watchers, as well as just about anyone else who follows politics and government, the question of possible Justice retirements and replacements comes to the fore. Four of the Justices are in their 70's. Three will be 80 or older 4 years from now, at the end of the Obama presidency.

(click to enlarge)

Those septuagenarians are Justices Ruth Bader Ginsburg, Antonin Scalia, Anthony Kennedy, and Stephen Breyer.

Now let's get one thing straight. This is not a death watch. (Others have engaged in that--explicitly.) Nor is this an illness watch. No. My fervent wish is that all the members of the Court would live long and healthy for double their current ages and beyond. So, No.

But this is about the reality and history of retirements. Leaving the Court for a host of different reasons. And at different ages.

Supreme Court: [Retiring] Justice Souter (Part 1: His Ideological Voting Record)

[Skip the italics to skip the personal notes.
It's been a week and a half since the last post. My excuse? The end-of-semester sprint. Racing to finish the courses, preparing the exams, holding review sessions--and eventually the grading. UGH!!
Well, it's not as bad as actually having to take the exams. The students have it much worse than we do. Don't let any professor tell you differently.
If I had my way, I'd just bring each student in for a talk about the course--a few questions, a brief discussion about the overriding principles and concepts covered.
What about anonymous grading? OK, put a bag over my head and give the student a voice-disguising device.
But I'll bet I can get a more accurate assessment of a student's knowledge and understanding of the subject matter in a 10 minute discussion than in a 3 hour written exam. And it would be a much less harrowing experience--both for the exam taker and the grader.
IAE, it's not going to happen. So before I get buried in exam-grading, let's talk about Souter.]


Not exactly a bombshell. Justice David Souter is retiring. Well, he's leaving the Court. It's been no secret that Souter dislikes living in D.C. and wants to return to New Hampshire. The job's fine, but the place (probably including the people and the social scene) are just not for him.

[Hey, I can't blame him. I spent a year there as a Supreme Court Fellow and found the place pretty dreadful--let me count the ways. I couldn't wait to get back to God's country in upstate New York.]

So what--where--has Souter been on the Court? Well, he's been a member of the liberal wing of the Court. That is, he has been one of the Justices whose voting has been more politically liberal than that of the fairly conservative Court as a whole. Indeed, he is one of those who has most consistently opposed the rightward direction of the Court under Chief Justice William Rehnquist and, now, John Roberts.

Let's make it visual. Here are a few graphs which illustrate Souter's position on the Court's ideological spectrum.

GRAPH 1 (click to enlarge)

What is plain is that Souter's voting record has placed him at the liberal end of the Court's ideological spectrum. He's been right (left?) there with Ruth Bader Ginsburg. (See the earlier posts on New York Court Watcher examining Ginsburg's place on the Court: Supreme Court: Ginsburg's Place Among Her Colleagues--A Voting Profile (Part 3), March 1, 2009; (Part 2), Feb. 25, 2009; and (Part I), Feb. 22, 2009.)

Together with John Paul Stevens and Stephen Breyer, he and Ginsburg have for 15 years typically voted together as the Court's liberal block on the hot-button issues. You know, separation of church and state, abortion rights, affirmative action, rights of the accused, rights of gays and lesbians, Bush v. Gore of course, and other controversial constitutional matters which usually divide the Justices and the people along the same, pretty consistent political lines.

And as for hot-button issues, let's take a look at how Souter voted on specific types of issues in the "defining decisions" of last term that we've been discussing on this blog for the past few months.
GRAPH 2 (click to enlarge)
As depicted in Graph 2, Souter sided with the party complaining about discrim-ination in each of the cases. Criminal or civil cases, race or age discrimination, discrimination itself or retaliation for complaining--Souter found merit in the claim.

Likewise on the "cultural issues," Souter's record was 100% politically liberal. Whether it was gun rights, treatment of the Gitmo detainees, the death penalty for child rapists, the binding nature of international law, or other such politically divisive questions, Souter took the politically liberal position each time.

On "law and order" issues Souter's record was not quite perfectly liberal. In one case, he went along with the Court's decision that a search by Virginia police that violated Virginia law was not an "unreasonable"--and therefore illegal--search under the Federal Constitution. Otherwise, whether the issue was the death penalty, ameliorative sentencing, ambiguity in a child pornography statute, or other crime control versus due process questions, Souter's vote was what would be expected of an ideological liberal.

Finally, on the "political process" issues, Souter voted to uphold campaign finance restrictions and to strike Indiana's Voter ID law--the politically liberal positions. But he took the more conservative position when he joined the Court to uphold New York State's concededly shameful nominating system for electing trial judges (and thereby to disagree with the federal district court and appeals court, both of which found the system so rigged and unfair that it violated basic due process). His overall record on these issues was liberal and, in fact, no other Justice's record was more so.

Let's put the foregoing in context. Let's compare Souter's voting record on these issues with that of the fairly conservative Chief Justice, the very conservative Antonin Scalia, and with the Court as a whole.
GRAPH 3 (click to enlarge)
In the discrim-ination cases, the Court's record was the same as Souter's. Chief Justice Roberts's was slightly more conservative. Scalia's was the polar opposite of Souter's.

In the "cultural issues" cases, the Court was half as liberal as Souter. Roberts was much more conservative, and, again, Scalia was Souter's polar opposite.

In the "law and order" cases, the Court again was half as liberal as Souter. Roberts was even more conservative, and Scalia was even more conservative than that.

In the "political process" cases, the Court and Roberts were equally more conservative than Souter, and Scalia was even more so--in fact, perfectly conservative.

So, "overall" is no surprise--and indeed exactly what Court watchers would have expected even without this examination. Souter's record, the most liberal. The Court's, about half as much. Roberts's record, a bit more conservative than the Court. Scalia's even more so, and virtually the opposite of Souter's record.

Well, that should give a pretty good picture of how Souter has been voting on the Court. And how his record compares with that of the Court itself and with two non-liberal colleagues.

In the next post, we'll look at how frequently Souter's been in the ruling majority of the Court, and how frequently he has been voting with each of the other Justices--i.e., who he's been agreeing with and who not.