Judicial Institutions and the Political Economy of Retirements

Abstract

I examine judicial retirements among elected and unelected state supreme court justices. I present new data relating to justices’ economic incentives to retire. I develop theoretical expectations for the rationality of judicial departures based upon political, economic, and institutional factors. Results demonstrate that both elected and unelected justices time their retirements upon their pension eligibility. Nevertheless, the electoral connection may constrain justices from securing some of these benefits. I find only limited evidence that justices retire in order to influence the politics of their successors and virtually no evidence that elected justices retire out of fear of losing reelection.

This is a preview of subscription content, access via your institution.

Fig. 1
Fig. 2

Notes

  1. 1.

    Even still, some judges derive “expressive” benefits from authoring opinions (e.g., Carrubba et al. 2012). These individuals engage in greater opinion-writing than their colleagues and are less likely to retire because they enjoy their work (Zorn and Van Winkle 2000).

  2. 2.

    See “An Act to Amend the Judicial System of the United States,” Forty-First Congress, Sess. 1, Chapt. XXII (1869).

  3. 3.

    See 28 U.S. Code §371.

  4. 4.

    These states are Massachusetts, New Hampshire, and Rhode Island.

  5. 5.

    Twenty-two states in total use competitive judicial elections.

  6. 6.

    Even in states that use competitive elections, if a judge retires before finishing her term, a political elite (usually the governor) will appoint an interim judge who may run for a full term. This individual enjoys an incumbency advantage, even if it is not as great as the one an individual who was originally elected to her position does (e.g., Hall and Bonneau 2006).

  7. 7.

    See 28 U.S. Code §371.

  8. 8.

    See Code of Virginia, Title 51, Ch. 3.

  9. 9.

    See Michigan Code of Laws, Ch. 38, §2101–1670.

  10. 10.

    See 28 U.S. Code §371.

  11. 11.

    See Nebraska Revised Statutes, Ch. 24, §701-714.

  12. 12.

    Kentucky Revised Statutes, Title IV, §21.347

  13. 13.

    Missouri Revised Statutes, Title XXXII, Ch. 476, §530

  14. 14.

    Indeed, if she chooses to pursue other work in her retirement, then a pension might even result in a pay raise if she can find a job for which her income when added to her pension benefit, exceeds her judicial salary.

  15. 15.

    These courts were chosen for their institutional heterogeneity and due to the fact that none changed their methods for selecting judges during the period of analysis.

  16. 16.

    Elected state supreme courts include partisan (Alabama, Louisiana, Texas, and West Virginia), nonpartisan (Kentucky, Oregon, Washington, and Wisconsin) and hybrid (Michigan and Ohio) institutions.

  17. 17.

    Appointed state supreme courts include those selected by elected officials such as the governor or state legislature (Maine, New Jersey, South Carolina, and Virginia) in addition to those using commission-based recommendations (Iowa, Kansas, Nebraska, and Oklahoma).

  18. 18.

    In fact, only one retention-eligible justice in the dataset—David Lanphier of Nebraska-failed to win a retention election.

  19. 19.

    At most, I only have data from four states for each of the various types of elected or appointed courts represented in my sample of 18 states. Therefore, I am reluctant to over-generalize about what effects the independent variables have on judicial retirements in these institutions.

  20. 20.

    Under federal law, once a judge has vested, she is entitled to 100% of her active-status salary. No additional service can increase this percentage. Hence, such a variable would have been irrational in an analysis of federal judicial departures but is quite relevant here.

  21. 21.

    While subsequent scholarship has demonstrated some weaknesses in the PAJID scores (Bonica and Woodruff 2014; Windett et al. 2015), they remain the most comprehensive estimates of state supreme court ideology during the span of the study at hand. Windett et al. (2015) only calculate ideological scores for justices dating back to 1995, and Bonica and Woodruff (2014) scores are either incomplete or induced for many of these years or individuals. Therefore, PAJID scores are the most appropriate alternative available, as already demonstrated by Curry and Hurwitz (2016).

  22. 22.

    See Curry and Hurwitz (2016, 1065) for a lengthier explanation of this method.

  23. 23.

    I accounted for inflation using the U.S. Bureau of Labor Statistics inflation calculator at: goo.gl/JSYG6N.

  24. 24.

    See 536 U.S. 765 (2002).

  25. 25.

    Judges of Hispanic descent are classified as “Nonwhite.”

  26. 26.

    Hall (2001b) and Boylan (2004) use logistic and probit regressions. Barrow and Zuk (1990) use a multivariate analysis, while Hagle (1993) and Spriggs and Wahlbeck (1995) employ poisson regressions.

  27. 27.

    Analysis of Schoenfeld residuals finds no evidence of non-proportionality among appointed courts (Grambsch and Therneau 1994). Nevertheless, I do find some evidence of non-proportionality among elected institutions. Further analysis found that “Age” was the offending variable. Omitting justices’ ages from the hazards models eliminates issues relating to non-proportionality, and the results are nearly identical.

  28. 28.

    Replication materials, including data and code, are available at: goo.gl/vpj9Hz.

  29. 29.

    To ensure that states such as Virginia that award a constant benefit, regardless of years served, are not biasing these null results, I re-estimated Model 3 without them. The results, however, were unchanged.

  30. 30.

    As a robustness check, I re-estimated the proportional hazards models including only those states that, between 1980 and 2005, switched from not having any intermediate court to having one. The results were similar to those in Table 3, though the effect of “Intermediate court” was no longer statistically significant.

  31. 31.

    This last finding on partisanship is, however, consistent with previous scholarship.

  32. 32.

    This study did, however, control for some additional variables (such as chief justice status) and operationalized some concepts such as judicial pay slightly differently than Curry and Hurwitz (2016) did. Therefore, one study is not, strictly speaking, a subset of the other.

  33. 33.

    Hall (2001b) employed probit regressions; Curry and Hurwitz (2016) used multinomial logistic regression; and this study estimated Cox proportional hazards models.

References

  1. Barrow, D. J., & Zuk, G. (1990). An institutional analysis of turnover in the lower federal courts, 1900–1987. The Journal of Politics, 52, 457–476.

    Google Scholar 

  2. Berry, W. D., Fording, R. C., & Hanson, R. L. (2000). An annual cost of living index for the American states, 1960–1995. Journal of Politics, 62, 550–567.

    Google Scholar 

  3. Berry, W. D., Ringquist, E. J., Fording, R. C., & Hanson, R. L. (1998). Measuring citizen and government ideology in the American states, 1960–93. American Journal of Political Science, 42, 327–348.

    Google Scholar 

  4. Bonica, A., & Woodruff, M. J. (2014). A common-space measure of state supreme court ideology. Journal of Law, Economics, and Organization, 31, 472–498. https://doi.org/10.1093/jleo/ewu016.

    Article  Google Scholar 

  5. Bonneau, C. W. (2005). Electoral verdicts: Incumbent defeats in state supreme court elections. American Politics Research, 33, 818–841.

    Google Scholar 

  6. Bonneau, C. W., & Hall, M. G. (2009). In defense of judicial elections. New York: Routledge.

    Google Scholar 

  7. Box-Steffensmeier, J. M., & Jones, B. S. (2004). Event history modeling: A guide for social scientists. Cambridge: Cambridge University Press.

    Google Scholar 

  8. Boylan, R. T. (2004). Do the sentencing guidelines influence the retirement decisions of federal judges? The Journal of Legal Studies, 33, 231–253.

    Google Scholar 

  9. Brace, P., & Boyea, B. D. (2008). State public opinion, the death penalty, and the practice of electing judges. American Journal of Political Science, 52, 360–372.

    Google Scholar 

  10. Brace, P., Langer, L., & Hall, M. G. (2000). Measuring the preferences of state supreme court judges. The Journal of Politics, 62, 387–413.

    Google Scholar 

  11. Brenner, S. (1999). The myth that justices strategically retire. The Social Science Journal, 36, 431–439.

    Google Scholar 

  12. Canes-Wrone, B., Clark, T. S., & Kelly, J. P. (2014). Judicial selection and death penalty decisions. American Political Science Review, 108, 23–39.

    Google Scholar 

  13. Cann, D. M., & Wilhelm, T. (2011). Case visibility and the electoral connection in state supreme courts. American Politics Research, 39, 557–581.

    Google Scholar 

  14. Carrubba, C., Friedman, B., Martin, A. D., & Vanberg, G. (2012). Who controls the content of Supreme Court opinions? American Journal of Political Science, 56, 400–412.

    Google Scholar 

  15. Cox, D. R. (1972). Regression models and life tables. Journal of the Royal Statistical Academy, 34, 187–220.

    Google Scholar 

  16. Curry, T. A., & Hurwitz, M. S. (2016). Strategic retirements of elected and appointed justices: A hazard model approach. The Journal of Politics, 78, 1061–1075.

    Google Scholar 

  17. Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: CQ Press.

    Google Scholar 

  18. Fairman, C. (1938). The retirement of federal judges. Harvard Law Review, 51, 397–443.

    Google Scholar 

  19. Ferejohn, J. (1986). Incumbent performance and electoral control. Public Choice, 50, 5–25.

    Google Scholar 

  20. Fields, G. S., & Mitchell, O. S. (1984). Retirement, pensions, and social security. Cambridge: MIT Press.

    Google Scholar 

  21. Goelzhauser, G. (2016). Choosing state supreme court justices: Merit selection and the consequences of institutional reform. Philadelphia: Temple University Press.

    Google Scholar 

  22. Grambsch, P. M., & Therneau, T. M. (1994). Proportional hazards tests and diagnostics based on weighted residuals. Biometrika, 81, 515–526.

    Google Scholar 

  23. Hagle, T. M. (1993). Strategic retirements: A political model of turnover on the United States Supreme Court. Political Behavior, 15, 25–48.

    Google Scholar 

  24. Hall, M. G. (1987). Constituent influence in state supreme courts: Conceptual notes and a case study. Journal of Politics, 49, 1117–1124.

    Google Scholar 

  25. Hall, M. G. (1992). Electoral politics and strategic voting in state supreme courts. The Journal of Politics, 54, 427–446.

    Google Scholar 

  26. Hall, M. G. (2001a). State supreme courts in American democracy: Probing the myths of judicial reform. American Political Science Review, 95, 315–330.

    Google Scholar 

  27. Hall, M. G. (2001b). Voluntary retirements from state supreme courts: Assessing democratic pressures to relinquish the bench. Journal of Politics, 63, 1112–1140.

    Google Scholar 

  28. Hall, M. G. (2015). Attacking judges: How campaign advertising influences state supreme court elections. Stanford: Stanford Law Books.

    Google Scholar 

  29. Hall, M. G., & Bonneau, C. W. (2006). Does quality matter? Challengers in state supreme court elections. American Journal of Political Science, 50, 20–33.

    Google Scholar 

  30. Hall, M. G., & Bonneau, C. W. (2013). Attack advertising, the White decision, and voter participation in state supreme court elections. Political Research Quarterly, 66, 115–126.

    Google Scholar 

  31. Hall, R. L., & Van Houweling, R. P. (1995). Avarice and ambition in Congress: Representatives’ decisions to run or retire from the U.S. House. American Political Science Review, 89, 121–136.

    Google Scholar 

  32. Hammond, T. H., Bonneau, C. W., & Sheehan, R. S. (2005). Strategic behavior and policy choice on the U.S. Supreme Court. Stanford: Stanford University Press.

    Google Scholar 

  33. Hansford, T., Savchak, E. C., & Songer, D. R. (2010). Politics, careerism, and the voluntary departures of U.S. district judges. American Politics Research, 38, 986–1014.

    Google Scholar 

  34. Hibbing, J. R. (1982). Voluntary retirement from the U.S. House of Representatives: Who quits? American Journal of Political Science, 26, 467–484.

    Google Scholar 

  35. Hughes, D. A. (forthcoming). New-style campaigns in state supreme court retention elections. State Politics & Policy Quarterly.

  36. Hughes, D. A., Wilhelm, T., Vining, R. L, Jr., & Vining. (2015). Deliberation rules and opinion assignment procedures in state supreme courts: A replication. Justice System Journal, 36, 395–410.

    Google Scholar 

  37. Lax, J. R., & Cameron, C. M. (2007). Bargaining and opinion assignment on the US Supreme Court. Journal of Law, Economics, and Organization, 23, 276–302.

    Google Scholar 

  38. Maltzman, F., Spriggs, J. F., & Wahlbeck, P. J. (2000). Crafting law on the Supreme Court: The collegial game. New York: Cambridge University Press.

    Google Scholar 

  39. Maskin, E., & Tirole, J. (2004). The politician and the judge: Accountability in government. American Economic Review, 94, 1034–1054.

    Google Scholar 

  40. Meyer, B. D. (1999). Judicial retirement laws of the fifty states and the District of Columbia. New York: Fordham University Press.

    Google Scholar 

  41. Nelson, K. R., & Ringsmuth, E. M. (2009). Departures from the court: The political landscape and institutional constraints. American Politics Research, 37, 486–507.

    Google Scholar 

  42. Nixon, D. C., & Haskin, D. (2000). Judicial retirement strategies: The judge’s role in influencing party control of the appellate courts. American Politics Quarterly, 28, 458–489.

    Google Scholar 

  43. Pérez-Liñán, A., & Araya, I. A. (2017). Strategic retirement in comparative perspective: Supreme court justices in presidential regimes. Journal of Law and Courts, 5, 173–197.

    Google Scholar 

  44. Posner, R. A. (1985). The federal courts: Crisis and reform. Cambridge: Harvard University Press.

    Google Scholar 

  45. Posner, R. A. (1993). What do judges and justices maximize? (The same thing everybody else does). Supreme Court Economic Review, 3, 1–41.

    Google Scholar 

  46. Schaffner, B. F., & Streb, M. J. (2008). Women running for judge: The impact of sex on candidate success in state intermediate appellate court elections. Social Science Quarterly, 937–954.

  47. Segal, J. A., & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited. Cambridge: Cambridge University Press.

    Google Scholar 

  48. Spriggs, J. F., & Wahlbeck, P. J. (1995). Calling it quits: Strategic retirement on the federal courts of appeals, 1893–1991. Political Research Quarterly, 48, 573–597.

    Google Scholar 

  49. Squire, P. (1988). Politics and personal factors in retirement from the United States Supreme Court. Political Behavior, 10, 180–190.

    Google Scholar 

  50. Stolzenberg, R., & Lindgren, J. (2010). Retirement and death in office of U.S. Supreme Court justices. Demography, 47, 269–298.

    Google Scholar 

  51. Streb, M. J., Frederick, B., LaFrance, C., & Rice, K. (2017). The latest trends in intermediate appellate court elections. In C. W. Bonneau & M. G. Hall (Eds.), Judicial elections in the 21st century (pp. 141–57). New York: Routledge.

    Google Scholar 

  52. Vining, R. L, Jr. (2009). Politics, pragmatism, and departures from the US courts of appeals, 1954–2004. Social Science Quarterly, 90, 834–853.

    Google Scholar 

  53. Vining, R. L., Jr., Wilhelm, T., Boldt, E., & Black, B. (forthcoming). Judicial reform in the American states: The chief justice as political advocate. State Politics & Policy Quarterly.

  54. Vining, R. L, Jr., Zorn, C., & Smelcer, S. N. (2006). Judicial tenure on the US Supreme Court, 1790–1868: Frustration, resignation, and expiration on the bench. Studies in American Political Development, 20, 198–210.

    Google Scholar 

  55. Ward, A. (2003). Deciding to leave: The politics of retirement from the United States Supreme Court. New York: State University of New York.

    Google Scholar 

  56. Windett, J. H., Harden, J. J., & Hall, M. E. K. (2015). Estimating dynamic ideal points for state supreme courts. Political Analysis, 23, 461–469.

    Google Scholar 

  57. Yoon, A. (2006). Pensions, politics, and judicial tenure: An empirical study of federal judges, 1869–2002. American Law and Economics Review, 8, 143–80.

    Google Scholar 

  58. Zorn, C., & Van Winkle, S. R. (2000). A competing risks model of supreme court vacancies, 1789–1992. Political Behavior, 22, 145–166.

    Google Scholar 

Download references

Acknowledgements

I would like to thank Scott Ainsworth, John Brooks, Bob Grafstein, Todd Curry, Garrett Vande Kamp, and Rich Vining, in addition to participants at the 2017 annual meeting of the Midwest Political Science Association, along with the anonymous reviewers, for their valuable feedback regarding this research. I also thank Rich Fording for providing me with cost of living data in the American states. Finally, I am indebted to Xiaofeng Chen for her research assistance. All remaining errors are my own.

Author information

Affiliations

Authors

Corresponding author

Correspondence to David A. Hughes.

Additional information

Publisher's Note

Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.

Rights and permissions

Reprints and Permissions

About this article

Verify currency and authenticity via CrossMark

Cite this article

Hughes, D.A. Judicial Institutions and the Political Economy of Retirements. Polit Behav 43, 1–27 (2021). https://doi.org/10.1007/s11109-019-09544-x

Download citation

Keywords

  • Judicial retirements
  • State politics
  • Judicial elections
  • Public pensions