E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Suppose you are a sitting Supreme Court Justice. To some degree you are concerned about who your successor will be. As the political scientists put it, your ideal point is, well, you. You want your successor to be as much like you as possible (if you're a conservative, just as conservative -- but no more conservative -- than you are, if you're a liberal, just as liberal -- but no more liberal -- than you are.) [I ignore the possibility that your actual behavior is itself strategic -- that is, you would like to be more liberal or conservative, but the conditions of the current Court are such that you are constrained to be no more liberal or conservative than your votes indicate.]
Consider the calculations you do today. Right now, your successor will take his or her seat as a result of a process in which a Democratic President is constrained by a Republican Senate. If you wait, there are four possibilities: another Democratic President similarly constrained, another Democratic President with a Democratic Senate, a Republican President with a Republican Senate, and a Republican President constrained by a Democratic Senate. You have to place probabilities on each of those possibilities, and then figure out how close a successor chosen under each of those conditions would come to your ideal point.
Without going through all the details, I suggest that, placing reasonable probabilities on each of the possibilities, it wouldn't be irrational for either Justice Ginsburg or Justice Scalia to conclude that retiring now would yield a successor closer to her or his ideal point than waiting.
But, of course, I'm asking you to suppose that you are sitting Supreme Court Justice. Which means that you have a quite high (probably irrationally high) sense of the contribution to the public good that you, and only you, can make. (Put more formally, you think that any successor will be so far from your ideal point -- again, you -- that small differences can be ignored.)
Mark Twain comes to mind: "Suppose you were an idiot, and suppose you were a member of Congress. But I repeat myself."