Balkinization  

Wednesday, May 20, 2009

The Rotation of the Justices: A Thought Experiment

JB

Do you want to know how Robert Bork became Chief Justice? Why the Court never heard Bush v. Gore? Read on.

I've written previously in support of a proposal that would ensure regular appointments of Supreme Court Justices. The President and Congress would nominate and confirm one Supreme Court Justice very two years, and the quorum for deciding cases would consist of the nine Justices most Junior in service. The more senior Justices will retain their commissions and life tenure. But they will hear cases with the full Court only when one of the junior Justices is recused or otherwise unable to perform his or her duties. Senior Justices can still consider petitions for certiorari (discretionary appeals), serve on other federal appellate courts, and handle matters that regularly come before individual Justices. But their caseload will be concentrated in their first eighteen years of service.

How would this proposal work in practice? In order to find out, I began with the actual pattern of appointments from 1951 to the present and ran it through the proposal, appointing a new Justice very two years. I chose 1951 as the starting point because everyone on the Court at that point had been appointed by one party (the Democrats) so we could see how successive appointments by presidents of both parties changed the composition of the Court. I extended the hypothetical to 2015 and imagined for purposes of the hypothetical that the Democrats retain the White House for two terms.

In each case I assumed that Justices would retire or die whey they actually did, thus creating a vacancy that would bring a Senior Justice into the quorum temporarily. This helps to demonstrate how the proposal works in practice.

If we were actually to adopt this proposal, the retirement decisions of the Justices might have been very different. Most Justices would never retire, because the workload of a Senior Justice is not very onerous, and they still retain their full salaries. In addition, if the proposal had been in place from 1951 onwards, presidents might have made very different choices of whom to pick (I note a few of these below). Nevertheless, this hypothetical helps us to understand how regular appointments would make (or not make) a difference to the composition of the Court. As you will see, the biggest differences come in the later years, when Justices tended to live longer and stay on the Court longer.

Some highlights:

* Hugo Black, although a senior Justice after 1953, remains in the quorum for deciding cases until his death in 1971 because so many other Justices die or retire.

* Similarly, William O.Douglas, although a Senior Justice for long periods of time, stays in the quorum until 1975, when he retires following a stroke. Because Douglas retires when there are no remaining Senior Justices, the Republicans get an extra appointment in 1975 according to the statutory proposal, robbing Jimmy Carter of the appointment he would have gotten in 1977.

* Jimmy Carter does, however, get one appointment, who replaces William Brennan in the active quorum in 1979. As a result, Shirley Mount Hufstedler of the Ninth Circuit, and not Sandra Day O'Connor, becomes the nation's first female Justice. Because it has already been done, Ronald Reagan does not make a campaign promise to nominate the first woman Justice, and so his 1981 choice of Sandra Day O'Connor becomes somewhat less likely.

* Thurgood Marshall remains in the quorum for deciding cases until 1983. He makes a brief pinch hitting appearance in 1986, replacing Lewis Powell, until he is pushed aside in 1989 by George H.W. Bush's first appointment (who we assume is David Souter, but might in fact have been very different under these circumstances). After Marshall's stint, the Justices now regularly live so long (or are appointed so young) that Senior Justices are not needed except in cases of recusal.

* In real life Ronald Reagan got only three appointments, in 1981, 1986, and 1987 (O'Connor, Scalia, Kennedy) plus he elevated Rehnquist to the Chief Justiceship. Under the proposal, he would have four Supreme Court appointments, in 1981, 1983, 1985 and 1986 (one year early because of Burger's retirement). If we imagine that Scalia would have been nominated in 1983, there would have been plenty of room for Robert Bork in 1985, while Lewis Powell was still on the Court. Reagan might still have designated Rehnquist to be the Chief Justice in 1986 when Burger retired; however it is possible that he might also have picked Bork or Scalia. The Bork Court: It has a nice ring to it, doesn't it?

* The four Reagan appointees (instead of three) along with William Rehnquist, Byron White and Clarence Thomas would have greatly increased the chances that Roe v. Wade was overturned by the early 1990s. That is because only two of the four Reagan appointees (say, Scalia and Bork) would have had to support overturning Roe. And if O'Connor is not appointed as the first female Justice (see above) Reagan might have picked a more determinedly pro-life Justice, increasing the margin for overturning Roe to 6-3. This should make the Republicans happy.

* Jimmy Carter would have gotten one appointment and Bill Clinton four. William Rehnquist leaves the quorum for deciding cases (except of course, for the occasional recusal) in 1993, Antonin Scalia leaves the quorum in 2001, and Clarence Thomas leaves the quorum in 2009. This should make the Democrats happy.

* Because Rehnquist becomes a senior Justice in 1993, Bill Clinton gets to appoint a new Chief Justice. It is none other than Ruth Bader Ginsburg, who becomes the nation's first female Chief Justice. Because she stays in the quorum until 2011, John Roberts does not become Chief Justice.

* In December 2000, the Court consists of Scalia, Kennedy, Reagan's fourth appointment, Souter, Thomas, Ginsburg, Breyer, Clinton's third appointment, and Clinton's fourth appointment. Assuming that Souter votes the same way he did in real life, Bush v. Gore comes out the other way or the Court doesn't even take the case.

The full results of the thought experiment are below:


Rotation of Justices, 1951-2015

1951: The Supreme Court consists of Black, Reed, Frankfurter, Douglas, Jackson, Burton, Vinson, Minton, Clark.

We begin with these Justices, all appointed by Democrats. There are no Senior Justices held in reserve.

Eisenhower's first appointment comes in 1953. It is Earl Warren.

1953: Reed, Frankfurter, Douglas, Jackson (replaced by Harlan in 1954), Burton, Vinson (replaced by Black in 1953), Minton, Clark, Warren.

Senior Justices in reserve: Black.

Vinson dies in September 1953, Black fills in as a Senior Justice. Warren (who has just been appointed) becomes Chief Justice.

Jackson dies in 1954, There are no remaining Senior Justices, so Harlan is appointed a year early. He would have been the new appointment in 1955.

1955: Black, Reed, Frankfurter, Douglas, Burton, Minton (replaced by Brennan in 1956), Clark, Warren, Harlan.

Senior Justices in reserve: none.

Minton retires in 1956. Because there is no other Senior Justice, Brennan is appointed a year early. He would have been appointed in 1957 otherwise.

1957: Black, Reed (replaced by Whittaker in 1957), Frankfurter, Douglas, Burton (replaced by Stewart in 1958), Clark, Warren, Harlan, Brennan

Senior Justices in reserve: none.

Reed retires in 1957. There are no other Senior Justices, so Whittaker is appointed early.

Burton retires in 1958; because there are no other Senior Justices, Stewart is appointed one year early. (This gives Eisenhower five appointments).

1959: Black, Frankfurter, Douglas, Clark, Warren, Harlan, Brennan, Whittaker, Stewart.

Senior Justices in reserve: none.

1961: Frankfurter (replaced by Black after 1962), Douglas, Clark, Warren, Harlan, Brennan, Whittaker (replaced by Goldberg after 1962), Stewart, White.

Senior Justices in reserve: Black.

Frankfurter dies in 1962, so Black replaces him.

Whittaker retires in 1962. There are no remaining Senior Justices, so Goldberg is appointed a year early.

1963: Black, Douglas, Clark, Warren, Harlan, Brennan, Stewart, White, Goldberg.

Senior Justices in reserve: none.

Goldberg retires in 1964. There is no remaining Senior Justice, so Fortas is appointed a year early.

1965: Black, Douglas, Clark, Warren, Harlan, Brennan, Stewart, White, Fortas.

Senior Justices in reserve: none.

1967: Black, Douglas, Warren, Harlan, Brennan, Stewart, White, Fortas, Marshall

Senior Justices in reserve: none. Clark retires in 1967 just as Marshall is appointed.

1969: Douglas, Warren (quickly replaced by Blackmun), Harlan, Brennan, Stewart, White, Fortas (quickly replaced by Black), Marshall, Burger.

Senior Justices in reserve: Black.

Fortas resigns in 1969. Black fills in as Senior Justice.

Warren retires in 1969. Burger becomes Chief Justice. Because there are no remaining Senior Justices, Blackmun is appointed two years early.

1971: Black, Douglas, Harlan, Brennan, Stewart, White, Marshall, Burger, Blackmun.

Senior Justices in reserve: none.

Black and Harlan die in 1971. Because there are no Senior Justices to fill their slots, Powell and Rhenquist are appointed early (for 1973 and 1975).

1973: Douglas, Brennan, Stewart, White, Marshall, Burger, Blackmun, Powell, Rehnquist.

Senior Justices in reserve: none.

1975: Douglas, Brennan, Stewart, White, Marshall, Burger, Blackmun, Powell, Rehnquist.

Senior Justices in reserve: none.

Douglas retires in 1975. There is no remaining Senior Justice to fill the vacancy, so Stevens is appointed two years early, robbing Jimmy Carter of an appointment.

1977: Brennan, Stewart, White, Marshall, Burger, Blackmun, Powell, Rehnquist, Stevens.

Senior Justices in reserve: none.

Note that because Stevens was appointed early, President Carter does not get a pick in 1977.

1979: Stewart, White, Marshall, Burger, Blackmun, Powell, Rehnquist, Stevens, Carter 1. [This refers to Carter's first pick]

Senior Justices in reserve: Brennan.

1981: White, Marshall, Burger, Blackmun, Powell, Rehnquist, Stevens, Carter 1, O'Connor.

Senior Justices in reserve: Brennan, Stewart.

Stewart resigns in 1981.

1983: Marshall, Burger, Blackmun, Powell, Rehnquist, Stevens, Carter 1, O'Connor, Scalia.

Senior Justices in reserve: Brennan, White,

1985: Burger (replaced by Marshall after 1986), Blackmun, Powell, Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy.

Senior Justices in reserve: Brennan, White, Marshall.

Burger retires in 1986; Rehnquist becomes Chief Justice.

1987: Blackmun, Powell (replaced by Marshall), Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy, Reagan 4. [This refers to Reagan's fourth appointment]

Senior Justices in reserve: Brennan, White, Marshall.

Powell retires in 1987, and Marshall fills in until 1989.

1989: Blackmun, Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy, Reagan 4, Souter.

Senior Justices in reserve: Brennan, White, Marshall.

Brennan retires in 1990.

1991: Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy, Reagan 4, Souter, Thomas.

Senior Justices in reserve: White, Blackmun,

Marshall dies in 1991.

1993: Stevens, Carter 1, O'Connor, Scalia, Kennedy, Reagan 4, Souter, Thomas, Ginsburg.

Senior Justices in reserve: White, Blackmun, Rehnquist.

White retires in 1993; Blackmun retires in 1994.

Note that because Rehnquist is not part of the regular quorum, someone else (possibly Ginsburg, because Clinton is now President) becomes Chief Justice.

1995: Carter 1, O'Connor, Scalia, Kennedy, Reagan 4, Souter, Thomas, Ginsburg, Breyer.

Senior Justices in reserve: Rehnquist, Stevens.

1997: O'Connor, Scalia, Kennedy, Reagan 4, Souter, Thomas, Ginsburg, Breyer, Clinton 3.

Senior Justices in reserve: Rehnquist, Stevens, Carter 1.

1999: Scalia, Kennedy, Reagan 4, Souter, Thomas, Ginsburg, Breyer, Clinton 3, Clinton 4.

Senior Justices in reserve: Rehnquist, Stevens, Carter 1, O'Connor.

2001: Kennedy, Reagan 4, Souter and Thomas, Ginsburg, Breyer, Clinton 3, Clinton 4, Roberts.

Senior Justices in reserve: Rehnquist, Stevens, Carter 1, O'Connor, Scalia.

Note that Roberts does not become Chief Justice because Ginsburg is still on the Court.

2003: Reagan 4, Souter, Thomas, Ginsburg, Breyer, Clinton 3, Clinton 4, Roberts, Alito.

Senior Justices in reserve: Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy.

2005: Souter, Thomas, Ginsburg, Breyer, Clinton 3, Clinton 4, Roberts, Alito, G.W. Bush 3.

Senior Justices in reserve: Rehnquist, Stevens, Carter 1, O'Connor, Scalia, Kennedy, Reagan 4.

Rehnquist dies in 2005; O'Connor retires in 2006.

2007: Thomas, Ginsburg, Breyer, Clinton 3, Clinton 4, Roberts, Alito, G.W. Bush 3, G.W. Bush 4.

Senior Justices in reserve: Stevens, Carter 1, Scalia, Kennedy, Reagan 4, Souter.

2009: Ginsburg, Breyer, Clinton 3, Clinton 4, Roberts, Alito, G.W. Bush 3, G.W. Bush 4, Obama 1.

Senior Justices in reserve: Stevens, Carter 1, Scalia, Kennedy, Reagan 4, Souter, Thomas.

Souter retires in 2009.

2011: Breyer, Clinton 3, Clinton 4, Roberts, Alito, G.W. Bush 3, G.W. Bush 4, Obama 1, Obama 2.

Senior Justices in reserve: Stevens, Carter 1, Scalia, Kennedy, Reagan 4, Thomas, Ginsburg.

Ginsburg is no longer in the quorum, so someone else, possibly Obama's second appointment, becomes Chief Justice.

2013: Clinton 3, Clinton 4, Roberts, Alito, G.W. Bush 3, G.W. Bush 4, Obama 1, Obama 2, Obama 3.

Senior Justices in reserve: Stevens, Carter 1, Scalia, Kennedy, Reagan 4, Thomas, Ginsburg, Breyer.

2015: Clinton 4, Roberts, Alito, G.W. Bush 3, G.W. Bush 4, Obama 1, Obama 2, Obama 3, Obama 4.

Senior Justices in reserve: Stevens, Carter 1, Scalia, Kennedy, Reagan 4, Thomas, Ginsburg, Breyer, Clinton 3.

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