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.
Buy single article
Instant access to the full article PDF.
Tax calculation will be finalised during checkout.
Subscribe to journal
Immediate online access to all issues from 2019. Subscription will auto renew annually.
Tax calculation will be finalised during checkout.
See “An Act to Amend the Judicial System of the United States,” Forty-First Congress, Sess. 1, Chapt. XXII (1869).
See 28 U.S. Code §371.
These states are Massachusetts, New Hampshire, and Rhode Island.
Twenty-two states in total use competitive judicial elections.
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).
See 28 U.S. Code §371.
See Code of Virginia, Title 51, Ch. 3.
See Michigan Code of Laws, Ch. 38, §2101–1670.
See 28 U.S. Code §371.
See Nebraska Revised Statutes, Ch. 24, §701-714.
Kentucky Revised Statutes, Title IV, §21.347
Missouri Revised Statutes, Title XXXII, Ch. 476, §530
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.
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.
Elected state supreme courts include partisan (Alabama, Louisiana, Texas, and West Virginia), nonpartisan (Kentucky, Oregon, Washington, and Wisconsin) and hybrid (Michigan and Ohio) institutions.
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).
In fact, only one retention-eligible justice in the dataset—David Lanphier of Nebraska-failed to win a retention election.
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.
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.
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).
See Curry and Hurwitz (2016, 1065) for a lengthier explanation of this method.
I accounted for inflation using the U.S. Bureau of Labor Statistics inflation calculator at: goo.gl/JSYG6N.
See 536 U.S. 765 (2002).
Judges of Hispanic descent are classified as “Nonwhite.”
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.
Replication materials, including data and code, are available at: goo.gl/vpj9Hz.
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.
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.
This last finding on partisanship is, however, consistent with previous scholarship.
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.
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.
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.
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.
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.
Bonneau, C. W. (2005). Electoral verdicts: Incumbent defeats in state supreme court elections. American Politics Research, 33, 818–841.
Bonneau, C. W., & Hall, M. G. (2009). In defense of judicial elections. New York: Routledge.
Box-Steffensmeier, J. M., & Jones, B. S. (2004). Event history modeling: A guide for social scientists. Cambridge: Cambridge University Press.
Boylan, R. T. (2004). Do the sentencing guidelines influence the retirement decisions of federal judges? The Journal of Legal Studies, 33, 231–253.
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.
Brace, P., Langer, L., & Hall, M. G. (2000). Measuring the preferences of state supreme court judges. The Journal of Politics, 62, 387–413.
Brenner, S. (1999). The myth that justices strategically retire. The Social Science Journal, 36, 431–439.
Canes-Wrone, B., Clark, T. S., & Kelly, J. P. (2014). Judicial selection and death penalty decisions. American Political Science Review, 108, 23–39.
Cann, D. M., & Wilhelm, T. (2011). Case visibility and the electoral connection in state supreme courts. American Politics Research, 39, 557–581.
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.
Cox, D. R. (1972). Regression models and life tables. Journal of the Royal Statistical Academy, 34, 187–220.
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.
Epstein, L., & Knight, J. (1998). The choices justices make. Washington, DC: CQ Press.
Fairman, C. (1938). The retirement of federal judges. Harvard Law Review, 51, 397–443.
Ferejohn, J. (1986). Incumbent performance and electoral control. Public Choice, 50, 5–25.
Fields, G. S., & Mitchell, O. S. (1984). Retirement, pensions, and social security. Cambridge: MIT Press.
Goelzhauser, G. (2016). Choosing state supreme court justices: Merit selection and the consequences of institutional reform. Philadelphia: Temple University Press.
Grambsch, P. M., & Therneau, T. M. (1994). Proportional hazards tests and diagnostics based on weighted residuals. Biometrika, 81, 515–526.
Hagle, T. M. (1993). Strategic retirements: A political model of turnover on the United States Supreme Court. Political Behavior, 15, 25–48.
Hall, M. G. (1987). Constituent influence in state supreme courts: Conceptual notes and a case study. Journal of Politics, 49, 1117–1124.
Hall, M. G. (1992). Electoral politics and strategic voting in state supreme courts. The Journal of Politics, 54, 427–446.
Hall, M. G. (2001a). State supreme courts in American democracy: Probing the myths of judicial reform. American Political Science Review, 95, 315–330.
Hall, M. G. (2001b). Voluntary retirements from state supreme courts: Assessing democratic pressures to relinquish the bench. Journal of Politics, 63, 1112–1140.
Hall, M. G. (2015). Attacking judges: How campaign advertising influences state supreme court elections. Stanford: Stanford Law Books.
Hall, M. G., & Bonneau, C. W. (2006). Does quality matter? Challengers in state supreme court elections. American Journal of Political Science, 50, 20–33.
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.
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.
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.
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.
Hibbing, J. R. (1982). Voluntary retirement from the U.S. House of Representatives: Who quits? American Journal of Political Science, 26, 467–484.
Hughes, D. A. (forthcoming). New-style campaigns in state supreme court retention elections. State Politics & Policy Quarterly.
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.
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.
Maltzman, F., Spriggs, J. F., & Wahlbeck, P. J. (2000). Crafting law on the Supreme Court: The collegial game. New York: Cambridge University Press.
Maskin, E., & Tirole, J. (2004). The politician and the judge: Accountability in government. American Economic Review, 94, 1034–1054.
Meyer, B. D. (1999). Judicial retirement laws of the fifty states and the District of Columbia. New York: Fordham University Press.
Nelson, K. R., & Ringsmuth, E. M. (2009). Departures from the court: The political landscape and institutional constraints. American Politics Research, 37, 486–507.
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.
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.
Posner, R. A. (1985). The federal courts: Crisis and reform. Cambridge: Harvard University Press.
Posner, R. A. (1993). What do judges and justices maximize? (The same thing everybody else does). Supreme Court Economic Review, 3, 1–41.
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.
Segal, J. A., & Spaeth, H. J. (2002). The Supreme Court and the attitudinal model revisited. Cambridge: Cambridge University Press.
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.
Squire, P. (1988). Politics and personal factors in retirement from the United States Supreme Court. Political Behavior, 10, 180–190.
Stolzenberg, R., & Lindgren, J. (2010). Retirement and death in office of U.S. Supreme Court justices. Demography, 47, 269–298.
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.
Vining, R. L, Jr. (2009). Politics, pragmatism, and departures from the US courts of appeals, 1954–2004. Social Science Quarterly, 90, 834–853.
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.
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.
Ward, A. (2003). Deciding to leave: The politics of retirement from the United States Supreme Court. New York: State University of New York.
Windett, J. H., Harden, J. J., & Hall, M. E. K. (2015). Estimating dynamic ideal points for state supreme courts. Political Analysis, 23, 461–469.
Yoon, A. (2006). Pensions, politics, and judicial tenure: An empirical study of federal judges, 1869–2002. American Law and Economics Review, 8, 143–80.
Zorn, C., & Van Winkle, S. R. (2000). A competing risks model of supreme court vacancies, 1789–1992. Political Behavior, 22, 145–166.
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.
Springer Nature remains neutral with regard to jurisdictional claims in published maps and institutional affiliations.
About this article
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
- Judicial retirements
- State politics
- Judicial elections
- Public pensions