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How could the 2024 presidential election determine Supreme Court retirements?

Although the data is mixed about the influence of political conditions on Supreme Court retirements, Northeastern legal scholars say that there is an element of strategy.

Group photo of the U.S. Supreme Court justices sitting and standing before a red curtain.
Members of the Supreme Court sit for a group portrait in Washington, Oct. 7, 2022. AP Photo/J. Scott Applewhite

The new Supreme Court term is getting underway less than a month before Election Day. 

And anytime a presidential election nears, talk of retirements on the court grows.  

Former Justice Stephen Breyer, who was one of three liberal members, was the last to retire in 2022. He was 83 at the time. 

His retirement allowed President Joe Biden to appoint Ketanji Brown Jackson, who became the first Black woman to serve in the lifetime role. 

Although the data is mixed about the influence of politics on the decision to retire, Northeastern legal scholars say that there is an element of strategy that takes into account existing and future political conditions that would dictate succession planning for a seat on the Supreme Court. 

“If you look at recent retirements like Breyer and [Anthony] Kennedy and [John Paul] Stevens and [David] Souter — it’s pretty clear they cared about the party nominating their successor,” says Dan Urman, director of the law and public policy minor at Northeastern, who teaches courses on the Supreme Court. 

“We are dealing with small numbers, of course — there have only been 116 justices,” Urman says. 

Of course, if you’re a Supreme Court justice, you’d be hard pressed to ignore the pressure to step aside when an opportunity presents itself, Urman says. Prior to Biden’s exit from the presidential race in July, calls for Justices Sonia Sotomayor or Elena Kagan (70 and 64, respectively) to get their affairs in order began to trickle in at the prospect of a second Trump presidency. Sotomayor, in particular, has reportedly been dealing with health issues linked to her diabetes. 

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With Vice President Kamala Harris at the head of the ticket, those calls seem to have quieted. But in an era of intense political polarization, the pressure to hang around or call it quits takes on new meaning, says Jeremy R. Paul, a professor of law and former dean of the Northeastern University School of Law. 

Paul says the growing politicization of the court — around the politicking that surrounds it — has raised the stakes of court retirements.  

Rumors have swirled around the potential retirements of Justices Clarence Thomas and Samuel Alito, who are 76 and 74, respectively, for some time. 

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“If Trump wins, it’s very likely that both [Clarence] Thomas and [Samuel] Alito will retire during his term,” Paul says. “And I can’t imagine a scenario where Trump wins and the Republicans don’t also have the Senate,” which would make the matter of installing successors a formality.   

On the flip side, if Harris wins in November, Paul says the pair of conservative justices may try to hold out until 2028. And they may even try to do so, Urman notes, if Trump is elected: “I think Alito and Thomas would want to stick it to their critics and not give them the satisfaction of having them off the court.” 

And if Harris wins, public pressure may swing in the opposite direction: “Sotomayor is 70, and would likely retire, or be urged to retire,” Urman says. 

The same critics who were calling for Sotormayor’s retirement months ago point to the case of former Justice Ruth Bader Ginsburg, who died during Trump’s first term at age 87. She was swiftly succeeded by Justice Amy Coney Barrett.

But just as many observers, it seemed, pushed back against a purely political calculus then.

“Ruth Bader Ginsburg made a choice that turned out wrong,” writes New York Magazine reporter Rebecca Traister. “She wanted to keep doing the work she loved and was good at and that mattered; she didn’t want to stop before she was ready. Like so many others, she believed Hillary Clinton would likely win in 2016. And like so many others, she was wrong about that.”