| Rumors abound that Samuel Alito intends to retire soon from his seat as an Associate Justice of the Supreme Court. The most telling indication? He has authored a book, So Ordered: An Originalist’s View of the Constitution, the Court, and Our Country, that is scheduled to be released on October 6 of the current year, that is, one day after the Supreme Court’s next Term commences. That would be among the least auspicious release dates for a new book by a sitting Supreme Court Justice, because in the press of business of a new term, he would be unable to make the rounds of a book tour to promote it. Thus, the thinking goes, Justice Alito plans to be retired by the time of his book’s release. | | That is reasonably sound logic, but it is hardly airtight. Justice Sonia Sotomayor’s 2013 book My Beloved World was released in mid-January, also an inauspicious time for a sitting Justice to kick off a book tour. Justice Ketanji Brown Jackson’s book Lovely One hit the shelves on September 3, 2024, while the Court was in recess but already gearing up for the term that would begin in barely a month. Justice Amy Coney Barrett did manage to work in a media blitz after the September 9 release of her Listening to the Law: Reflections on the Court and Constitution last year, but if she was perfectly attuned to timing, she would have sought a still earlier release. In recent memory, only the August 6, 2024 release of Justice Neil Gorsuch’s Over Ruled: The Human Toll of Too Much Law seems to have been perfectly timed for a sitting Justice to promote it. Thus, if all we had to go on was the release date of Justice Alito’s book, the tea leaves would be at least a bit muddled. | | However, there are other reasons to credit the rumors. Perhaps the most compelling is where we are in the election cycle. Justice Alito will turn 76 in April. Although he appears to be in good health, one never knows when death or disability may strike. Justice Alito has been instrumental in moving Supreme Court jurisprudence to the right on numerous issues, including abortion, affirmative action, capital punishment, federalism, gun control, LGBTQ+ rights, presidential power, and more. Like most Justices, he would almost certainly like to be replaced by a like-minded jurist, which cannot be guaranteed after the 2026 midterm election. In the event that Democrats take control of the Senate, they might one-up Republicans who held open the seat vacated by Justice Antonin Scalia’s death: they refused even to hold a hearing for President Barack Obama’s nominee for nearly a year so that a Republican could fill it; perhaps Democrats would hold Alito’s seat open for two years. Hence, by retiring well in advance of the midterms, Justice Alito can ensure that his seat goes to a sympatico but much younger version of himself. | | Accordingly, if I were inclined to bet on such things, I would say that Justice Alito is more likely than not to retire this year. But the very fact that one is left to speculate about such things in the way that Kremlinologists during the Cold War had to guess at the internal workings of the Communist Party in the Soviet Union based on who was seated where in official photographs suggests that something is awry with our Supreme Court. | | Lack of Transparency | | It is tempting to say that the problem is a lack of transparency. And there are indeed a number of transparency problems with the Supreme Court. First, there is no good reason why Supreme Court oral arguments are not televised. | | Second, especially lately, the Supreme Court has been deciding far too many cases and making precedent in either completely unexplained or very under-explained rulings on its emergency (or “shadow”) docket. | | Third, the internal workings of the Court are governed by no sunshine laws. It is completely understandable that the Court does not wish for its deliberations to be public while cases are pending. Most institutions have some need for some deliberative privacy, so that officials can explore a full range of options without fear of their preliminary views becoming public. But at some point, the public has an overriding claim to know how otherwise unaccountable power is being exercised. | | Yet no law requires that Justices’ papers be made public. Justice Harry Blackmun’s papers were released by the Library of Congress shortly after his death because he left no instructions to the contrary. That release provided historians and the public with a treasure trove of information. Unfortunately, no law or Court rule requires other Justices to follow suit or to make their papers public—ever. | | What’s worse, the Supreme Court appears to be headed in the wrong direction. The subtitle of a recent New York Times story perfectly encapsulates the backwards reasoning of Chief Justice John Roberts in the wake of the paranoia that followed the 2022 leak of the Supreme Court’s decision eliminating the constitutional right to abortion: “Amid calls to increase transparency and revelations about the court’s inner workings, the chief justice imposed nondisclosure agreements on clerks and employees.” | | Thus, the Supreme Court has a real and apparently worsening transparency problem. However, that is not the root cause of the intense speculation about whether Justice Alito will or won’t retire imminently. Key officials in other government branches and other institutions do not typically announce their retirements until . . . well, . . . until they announce their retirements. A sitting Senator, corporate CEO, or university president might be contemplating retirement but understandably taking time to make sure of the decision before announcing it. That is not a sign that the corresponding institution has a transparency problem. It is simply how the world works. | | Life Tenure | | If the Supreme Court’s transparency problems—real as they are—are not the root of the speculative frenzy around Justice Alito’s retirement plans, what is? The short answer is life tenure plus ideologically high stakes. | | Article III of the U.S. Constitution provides that Supreme Court Justices (and lower federal court judges) “hold their offices during good behaviour,” a formula that has long been understood to mean “for life,” absent commission of an impeachable offense. There is not even a mechanism for involuntarily removing a Justice who has become too infirm to perform the job (because infirmity is not a condition for which impeachment is a remedy). | | In recent years, three Justices—Chief Justice William Rehnquist in 2005, Justice Scalia in 2016, and Justice Ruth Bader Ginsburg in 2020—died in office, but the general pattern during this period is for Justices to retire, typically choosing to do so, if possible, while the presidency and the Senate are controlled by the party most likely to name a successor who shares the retiring Justice’s judicial philosophy and values. Given the high stakes occasioned by polarization, the nature of the cases the Court decides, and the relative infrequency of vacancies, it is thus perfectly understandable that the public would be very interested—obsessed would not be too strong a word—with retirement rumors. | | This is not a sensible way to run a constitutional democracy. Whatever one thinks of the substance of the Court’s rulings, who staffs the Court to make those decisions should not depend on the accidents of a Justice’s health, vanity, political calculations, and luck. That is why a great many constitutional scholars across the political spectrum have long favored alternatives. The most popular such alternative would have Justices serve for 18-year terms, predictably giving each president exactly two opportunities to make an appointment per four-year term (absent early retirement or premature death). | | That proposal is hardly perfect. For one thing, it is not clear how it would interact with Senate intransigence of the sort we saw after Justice Scalia’s death. But there is no reason to work out all the details because the proposal stands no realistic chance of enactment. President Biden proposed the 18-year term-limit plan in 2024, but it made virtually no impact. It is not clear whether the term-limit proposal could be implemented without surmounting the enormous obstacles to a constitutional amendment, but for now, even an attempt to enact it by an ordinary statute appears to be out of reach. | | Thus, with life tenure apparently here to stay and the nation and Court highly polarized, we can expect many more years of SCOTUS retirement Kremlinology. |
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