Politicized Departure from the United States Supreme Court*
Running Head: Supreme Court Departures
May 14, 2007
Total Word Count 11,611
Ross M. Stolzenberg**Department of Sociology
University of Chicago
Telephone: 847 408-0168 / and / James Lindgren
School of Law
Northwestern University
Telephone: 312-503-8374
*We thank Albert Yoon for making available to us some of the data analyzed herein, and Lee Epstein for advice.
**Corresponding author.
Politicized Departure from the United States Supreme Court
ABSTRACT
Nearly seven decades of quantitative analysis and narrative historical research investigate the hypothesis that political factors influence the probability and timing of resignations and deaths-in-office of U.S. Supreme Court justices (the Politicized Departure Hypothesis). Narrative historical studies mostly report support for the hypothesis, quantitative analyses mostly report the opposite, and neither method yields consistent findings. Reasons for these differences are uncertain because prior studies differ dramatically in the data they examine and the methods they apply. Previous quantitative analysts criticize each others’ methods and generally regret the lack of appropriate health (vitality) measures for most justices. Here, we review prior research, reformulate hypotheses, and reconsider conceptual, measurement and analytic issues. We include a widely-accepted vitality measure. We analyze data on every justice from 1789 through 2006, using robust, cluster-corrected, discrete time, censored, event history methods. We apply previously-used techniques to compare our results to previous studies. Findings are consistent with the Politicized Departure Hypothesis and suggest that its effects are substantial. Most non-political factors have nonlinear effects on resignations, some of which reverse direction as justices age.
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Supreme Court Departures May 14 2007 Page 6
I. INTRODUCTION
Of U.S. Supreme Court Justices, two things are certain: They are appointed to the Court, and they subsequently depart from it. By law, Court appointment is explicitly political, involving nomination and appointment by the President “with the Advice and Consent of the Senate” (U.S. Const., Art. II, sec. II). But law dictates no role for Presidents, politics, or public scrutiny in selecting the times at which justices vacate the Court: Except in cases of treason, bribery, or other serious crimes, justices leave office only by death, or when they themselves alone, individually, resign. Nonetheless, observers have long asserted that the timing of justices’ resignations from the Court, and even the probability that they die in office, reflect a highly politicized process that does, like their nominations to the Court, revolve around political compatibility between the individual jurist and the incumbent President of the United States (Ward 2003; Calabresi and Lindgren 2006; Zorn and Van Winkle 2000; Biskupic 2004). We call this assertion the Politicized Departure Hypothesis, and we develop and test it below.
The Politicized Departure Hypothesis asserts that the timing of resignation from active service on the Supreme Court tends to be influenced by political as well as personal circumstances of justices. Personal circumstances likely would include the same factors that influence retirements and voluntary job terminations of all workers -- vitality, age, personal finances, and job tenure (i.e. length of service on the Court) (see, e.g., French 2005). Political circumstances are hypothesized to impinge on personal considerations because the retirement of a justice – particularly if it occurs early in a President’s term of office – allows the sitting President to nominate the replacement for that justice, and thereby prevents a future President of the opposing party from doing so. The Politicized Departure Hypothesis reasons that, regardless of differences in political philosophy, justices tend to be loyal to the political party of the President who nominated them to the Court and that justices consequently tend to adjust the timing of their resignations to give a President of that same party the opportunity to appoint their judicial successor (see Epstein, Segal, Spaeth, and Walker 1996, 368).[1] In particular, the Politicized Departure Hypothesis asserts that:
1) Other things equal, if the incumbent President is of the same party as the President who nominated the justice to the Court, and if the incumbent President is in the first two years of a four-year Presidential term, then the justice is more likely to resign from the court than at times when these two conditions are not met.
By removing live justices from office, accelerated departure reduces their opportunity to die in office. Retarded departure does the opposite. Thus, the Politicized Departure Hypothesis implies that,
2) ) Other things equal, if the incumbent President is of the same party as the President who nominated the justice to the Court, and if the incumbent President is in the first two years of a four-year Presidential term, then the justice is less likely to die in office than at times when these two conditions are not met.
This paper tests these two implications of the Politicized Departure Hypothesis. Section I considers previous research and historical material that is related to the Politicized Departure Hypothesis. Sections II and III consider methodological and conceptual issues, data, and measurement. Section IV reports analytic results. And Section V discusses findings.
II. EXISTING EVIDENCE REGARDING POLITICIZED DEPARTURE
Table 1 summarizes key features of some previous considerations of the Politicized Departure Hypothesis, starting with Fairman’s (1938, 406) Harvard Law Review article that considers both quantitative data and narrative historical evidence. Subsequent narrative studies tend to be highly selective, focusing on specific justices whose Court departures appear to have been timed politically. For example, Goff (1960, 96), argues that a senile and incompetent Justice William Cushing remained in office until death in 1810, solely in an attempt to stave off the appointment of a Democratic-Republican replacement. Van Tassel (1993), Atkinson (1999), Garrow (2000) and Ward (2003) provide historical evidence of politicized departure by particular justices. Farnsworth reports that Justices William Rehnquist (2005, 448) and Sandra Day O’Connor (2005, 375) stated preferences that their replacements be nominated by a President of the same party as the President who appointed them. Hutchinson (1998) reports statements of similar preferences by Justice Byron White. Justices Black, Douglas, Marshall and Brennan are all reported to have delayed departure in unsuccessful attempts to give a Democratic President the opportunity to name their successors (Oliver 1986, 806-08; Woodward and Armstrong 1979, 161).
Although some narrative historical studies provide evidence that several justices acted according to the predictions of the Politicized Departure Hypothesis, they leave three sources of uncertainty. First, some narrative studies contradict the Politicized Departure Hypothesis. For example, Brenner (1999) argues that politicized departure occurs rarely or never (but see Ward’s [2004] critique of Brenner). Others cite the case of Justice Warren to assert that political philosophy, rather than party identification per se, affects the timing of some Court resignations; Justice Warren was appointed by Republican President Eisenhower, but is reported to have tried unsuccessfully to time his resignation so a Democrat could nominate his successor (Oliver 1986, 805-06, citing White 1982, 306-08, Schwartz 1983, 680-83, 720-25). Second, most of these narrative accounts rely on justices’ recollections of their thoughts and emotions, their subjective explanations of their own past behavior, and sometimes even their predictions of their future behavior. Contemporary social science evidence suggests skepticism about the validity of such reports (see Fazio 1986; Fishbein and Ajzen 1975; Cannell, Miller, and Oksenberg 1981; Eisenhower, Mathiowetz, and Morganstein 1991; Kalton and Schuman 1982; Sudman and Bradburn 1982). Third, and perhaps most important, existing historical narrative studies disproportionately focus on justices whose behavior is hypothesized or reputed to be dramatically consistent with the politicized departure hypothesis. By selecting and focusing on judges whose departures were highly politicized, these studies provide no evidence whatsoever concerning departures of the great majority of Supreme Court justices. In short, historical studies provide nuanced understanding of specific cases, and they are a useful basis for formulating the Politicized Departure Hypothesis, but they are too selective to test that hypothesis, or to indicate if Politicized Departure is a general pattern, an occasional aberration, or a hypothesized event that has never actually occurred.
In contrast to fine-grained, narrative historical research that seeks certainty about the personal motives and retirement behavior of particular individuals, existing quantitative analyses consider probabilistic assertions about patterns of behavior by Supreme Court justices in general, examine observable, publicly available data; and consider hypotheses that observable political circumstances have had, on average, some effect on the timing of all departures from the Court. Quantitative analyses of Supreme Court departures vary widely in substantive conclusions and methodology. Substantively, Yoon (2006), Brennner (1999) and Squire (1988) report finding no evidence of a general pattern of politicized departure of justices. In contrast, Hagle (1993) and King (1987) report findings of political effects on annual numbers of departures from the Supreme Court. Zorn and Van Winkle (2000), and Box-Steffensmeier and Zorn (1998) present some statistical analyses that are consistent – and some that are not consistent – with the hypothesis of politicized departure.[2]
While the contradictory findings of prior research permit no firm substantive conclusions, methodological disagreements between previous analysts clearly delineate critical methodological issues. These issues include the lumpability of death-in-office and retirement, aggregation of individual data into frequency data for the Court as a whole, measurement and control of the vitality (health) of justices, and the calculation of effect measures and statistical significance in analyses involving multiple indicators and statistical interactions. We describe those issues briefly:
Lumpability. Some previous statistical studies (e.g. King 1987; Yoon 2006) lump resignations and deaths-in-offices into undifferentiated departures from the Court. Hagle (1993), Spriggs and Wahlbeck (1995, 575), and Nixon and Haskin (2000, 462) complain that lumping confuses interpretation. These complaints are logical: Retirement is a voluntary action by justices who have not yet died, but death-in-office is an involuntary biological event that befalls justices who have not yet chosen to retire.[3] Thus, using Departure-by-any-means as a dependent variable appears to confound positive and negative mortality risks, and to conflate processes that promote and discourage retirement. Logical problems notwithstanding, the lumping problem is well-known in statistics to be sometimes disastrous, but sometimes benign (Ledoux, Rubino, and Sericola 1994; Cotterman and Peracchi 1992). Accordingly, we take an empirical approach to lumping: we estimate separate models of departures, resignations, and deaths-in-office. If these models produce similar results for retirement and death-in-office, then they demonstrate that lumping is permissible. If they produce different results for retirement and death-in-office, then they show that separate analyses are required.
Aggregation. In some previous research, retirements and deaths-in-office of individual justices are aggregated into annual frequencies of these events for the Court as a whole (e.g., Wallis 1936; Callen and Leidecker 1971; Ulmer 1982; King 1987; Hagle, 1993). These annual frequencies are informative descriptions of historical trends that permit appropriate tests of organization-level hypotheses about the Court as a whole. However, departure from the Court is an individual-level phenomenon determined by the decisions and deaths of individuals. Testing hypotheses about individual-level phenomena with aggregated frequency data would commit the “ecological fallacy” under most circumstances, and so is unacceptable (see King 1997). Therefore, we examine individual-level data. When it is useful to consider frequency distributions for the Court as a whole, we can use probability laws to aggregate individual-level results into frequency distributions for the court as a whole.
Vitality. Many previous labor force studies hypothesize and find that as workers’ subjective or objective health declines, their probability of retirement increases (see French 2005; Bound 1991; Dwyer and Mitchell 1999; Parsons 1982). Virtually all previous historical narrative studies of Supreme Court departures consider the retirement effects of vitality, or its opposite, decrepitude. In quantitative analyses, Squire (1988) includes a measure of justices’ poor health, but Hagle (1993, 35) criticizes Squire’s vitality measure. Zorn and van Winkle (2000: 162) complain that Squire’s measure “is so narrow as to almost reach the certainty of leaving office.” Previous analysts despair of the possibility of obtaining adequate health data for quantitative analysis of Supreme Court departures: Citing Greenhouse (1984), Hagle (1993:46) asserts that Supreme Court Justices are confirmed fibbers concerning their health. Zorn and van Winkle (2000) use justices’ productivity (written opinion production per year) to measure their health, but productivity is obviously different from health (see Green and Baker 1991), and seemingly subject to a wide range of political, psychological and personal influences. To the best of our knowledge, no subsequent quantitative analysis of Supreme Court departures (e.g., Yoon 2006) includes a direct measure of vitality. Because previous research finds that health is an important determinant of retirement in the general working population, the absence of an accepted health indicator in previous quantitative Supreme Court studies remains a source of uncertainty.
Ironically, it appears that a standard, useful and available health measure exists for Supreme Court justices, but has not been used previously. This measure is the number of remaining years of life for each justice, measured in each year of each justice’s service on the Court. Remaining years of life has been used as an objective health indicator in a long line of previous health research (e.g. Idler and Kasl 1991; Kaplan 1987; Mossey and Shapiro 1982) and studies of health effects on retirement of the general population (e.g. Parsons 1982; Bound 1991; Baker, Stabile and Deri 2004; French 2005). Further, remaining years of life has been used as an objective health indicator for establishing the validity of self-reported, subjective health measures (Davies and Ware 1981; Mossey and Shapiro 1982; Ross and Wu 1995). In addition, Han, Phillips, Ferrucci, Bandeen-Roche, Jylha, Kasper, and Guralnik (2005: 216) find significant association between increased mortality and changes in subjective feelings of vitality. In short, future longevity is an empirically validated indicator of “objective” and “subjective” vitality (health). As we write, all justices (except those now serving on the Court and Justice Sandra Day O’Connor) are now dead, making it possible to calculate the years of remaining life for all but one former justice in each and every year of their service on the Court.
Multiple Indicators. Previous studies of Supreme Court departures consider various hypotheses involving the party of the sitting President, the party of the President who appointed the justice in question, and additional variables combining various party affiliations. Even if there is no ambiguity in the substantive hypotheses that motivate these variables, the variables themselves sometimes appear in several interaction terms, each with its own coefficient, standard error, and error covariance with other included terms. Calculation of effect measures and significance tests for each variable must therefore accommodate all terms that involve the variable.