656 THE ADVOCATE
VOL. 76 PART 5 SEPTEMBER 2018
would not want to have taken away from them the power that choice brings.
While all the scrutiny that Justice Kennedy’s decision attracted might not
be the cup of tea of those of us who sometimes wish we had fewer choices
(even when standing in a grocery store aisle) rather than being burdened by
yet more, or who prefer our confrontations limited to our turn to speak in
court, perhaps sympathy is not something that those in Kennedy’s position
would want. After all, judges presumably like making decisions—or why
would they have sought out their judicial role? Certainly they become
accustomed to making decisions and, often, doing so well. For those judges
at the top ranks of the U.S. judiciary, they are used to their decisions being
the subject of public scrutiny and sometimes ire. Judges who make important
decisions daily about the lives of those before them may be particularly
suited, even past the age of 75, to make decisions about when they should
retire, just as are colleagues who reach this decision while still short of
mandatory retirement. Perhaps some may actually relish the power to continue
to do so, weaponizing longevity and good health, donning the cape of
Justitia (and perhaps even wielding her sword) to fend off administrations
that they perceive to be foes of the greater good.
What considerations have in fact governed how the power to choose has
been exercised? Is it in a way that should worry us? Traditionally, even when
judges notionally had the power, unconstrained by age limits, to choose
when to leave, circumstances beyond their control sometimes dictated their
choice. In particular, before the era of pension schemes, some may have felt
compelled to remain in their roles in order to sustain their standard of living.
Other circumstances sometimes drove judges to leave early though not
legally forced to do so. In the early years of the U.S. Supreme Court, judges
apparently faced tough conditions “riding circuit” away from the capital,
which made retirement attractive. And even once confined to Washington,
D.C., historically there were heavier workloads with fewer benefits (and law
clerks) that also made remaining on the court less attractive than it is today.
Improvements in health may also have empowered judges to remain longer.
It has become easier against this backdrop for judges to take into account
considerations beyond the purely practical in making their decision.
What kind of considerations have judges in fact taken into account over
recent decades when determining whether to retire in circumstances
where not required to do so? Factors may include, of course, how much they
continue to enjoy the cases and status that accompany the role. Other factors,
however, may be political. In particular, it seems that judges of the U.S.
Supreme Court often attempt to time their retirements when “politically
like-minded presidents” are in power or (perhaps equivalently) “the presi-