The Timing Game That Justices Play

Steven G. Calabresi is a professor and Ilya Somin is a fellow at Northwestern University School of Law.

How dare they?

Chief Justice William H. Rehnquist and Justice Sandra Day O’Connor are reported to be ready to retire, and that has mightily upset some liberals who are still arguing the 2000 presidential election.

How dare the justices time their retirements so that President Bush, ushered into office by virtue of a Supreme Court decision, can appoint their replacements?

Well, the tactic is not new. Supreme Court justices have timed their retirements to facilitate ideologically similar replacements for 200 years.


The greatest chief justice of them all, John Marshall, was appointed to the bench by the lame-duck administration of President John Adams as part of a successful court-packing move created by the ideologically timed retirement of his predecessor. Marshall stayed on the court for years trying to prevent his political opponents from replacing him, failing in this object only as a result of death.

More recently, liberal Chief Justice Earl Warren timed his retirement in 1968 in the hope that President Johnson could appoint Justice Abe Fortas, a liberal, to replace him. That plan didn’t work, and it fell to Johnson’s successor, President Nixon, who named Republican Warren Burger as Warren’s successor as chief justice. Burger in turn timed his departure in 1986 to allow President Reagan to appoint his successor. That is how Rehnquist came to be chief justice.

O’Connor also owes her appointment to the politically timed departure of her predecessor, Republican Potter Stewart, who left during Reagan’s first year in office. More recently, Justice Byron R. White, a Kennedy appointee, timed his 1993 departure to give his seat to President Clinton and a Democratic Senate. Liberal Justice Harry A. Blackmun stayed on the court until he was 85 to outlast Reagan and former President Bush. Clinton got to fill his seat too. Liberals didn’t complain then.

Yet some liberals now say that justices who helped put Bush in office -- Rehnquist and O’Connor were both in the majority in Bush vs. Gore -- ought not to retire during his term and thus allow him to replace them. We are conservatives who disagreed with the court’s decision in the 2000 election. But history has something to say as well about appointments by supposedly “illegitimate” presidents.


In the great disputed election of 1876, Rutherford B. Hayes became president in much the same fashion as did Bush. There was a partisan vote by five Supreme Court justices appointed to the committee that arbitrated the election. Hayes made two court appointments, one of whom went on to become one of the greatest Supreme Court justices in American history: John Marshall Harlan the elder, who was ahead of his time in believing in equal rights for African Americans. He coined the phrase “the Constitution is colorblind” in his dissent to Plessy vs. Ferguson, which established the “separate but equal” doctrine in 1896. Harlan’s grandson and namesake was another great Republican-appointed justice.

In any event, even if Bush vs. Gore was a mistake, it is wrong to assume that Bush’s legitimacy is tied to that decision. A study by the University of Chicago’s nonpartisan National Opinion Research Center shows that Bush would have won in the final vote tally even if the U.S. Supreme Court had not stopped the recount requested by Al Gore and ordered by the Florida Supreme Court. In other words, even if Gore had won in the U.S. Supreme Court, Bush still would have won the presidency.

Bush’s legitimacy is further enhanced by the Republican Party’s recent historic congressional victory in the midterm election. This victory is largely due to the president’s popularity and came after a campaign in which both parties hotly debated the issue of judicial appointments.

It has been nine years since the last Supreme Court vacancy, and the court is in need of fresh blood. Rehnquist and O’Connor are in their 70s, and both have had serious health problems. They are entitled to step down now, and they should do so. Bush is not only entitled to appoint their replacements, he is obligated by his oath of office to do so.