Judicial Institutions and the Political Economy of Retirements

David A. Hughes (@davidhughes_phd)
Auburn University at Montgomery

What motivates a judge’s decision to retire from active service? Surely personal factors such as age, health, or financial stability help to guide individuals’ willingness to leave the bench. Indeed, research on the federal courts finds that judges are more likely to retire when they are more advanced in age or have vested in pension benefits.

If the role of the American jurist was only ministerial, then we might expect our analysis to end upon the examination of such personal factors as age and economic security. But judges are also policy-makers. Who replaces them upon their departure has critical implications for the types of policies courts are likely to render in the future.

Mindful that the judicial selection process is inherently political, federal court observers have long speculated that judges prefer to time their departures to coincide with administrations that share their own ideological perspectives.

For example, Sandra Day O’Connor preferred to retire in the early 2000s to spend more time with her husband. But on election night, when television networks initially called Florida for Al Gore, she is alleged to have remarked, “This is terrible,” because she thought she’d need to wait at least another four years to retire under a Republican administration.

The history of U.S. Supreme Court retirements is replete with such anecdotes. But when it comes to judicial retirements at the state level, scholars understand significantly less. For one thing, the historical record simply contains fewer such anecdotes compared to the federal courts. For another, judicial institutions at the state-level are far more heterogeneous than at the federal-level. This is principally due to the presence of competitive elections.

Unlike federal judges who have life tenure, elected state judges must, from time-to-time, stand before the electorate to win new terms of office. Some state supreme court justices run as often as every six years, and these contests can be rather competitive. Between 1990 and 2014, approximately 15 percent of all state supreme court incumbents lost their reelection efforts.

Elections complicate the retirement calculus because they introduce uncertainty into the judge’s decision-making process. This is especially true for those at risk of losing their reelection efforts. These individuals often lose because they have preferences inconsistent with the public’s. If judges retire to avoid a hostile electorate, then it is less likely they will do so under a co-partisan governor.

Indeed, recent scholarly work finds that justices on appointed state supreme courts time their departures with respect to their partisan alignment with appointing elites, while those on elected courts exhibit no such behavior. It appears, then, that the electoral connection encourages individuals unlikely to win their next election to go ahead and call it quits.

Compared to the politics of state court departures, scholars understand next to nothing about how pension benefits affect retirements. This is curious given the preponderant role such factors play at the federal level. Existing research should lead us to believe that any given state judge should be more likely to retire if she is eligible for her pension. But how might we expect electoral uncertainty to condition judges’ economic incentives to leave the bench?

To address these questions, I gathered data on 388 state supreme court justices’ retirement benefits across 26 years and 18 American states. I examined each justice’s eligibility for pension benefits in a given year of service, and if eligible, what percent of their salary they could earn if they were to retire that year.

Every state offers its judges some form of retirement plan. The federal judiciary uses the “Rule of 80,” which holds that judges may retire with full benefits once their age and years of creditable service total at least 80. While every state likewise defines eligibility and benefits using age and service, some make it easier for judges to become pension eligible than others, and many require judges to continue in service even after having already vested in order to increase the size of their benefits.

To study the effects of public pensions on judges’ retirement decisions, I examined the pension plans of ten elected and eight appointed state supreme courts. Using their age and years of creditable service, I then determined each judge’s pension eligibility and the size of their benefits.

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Figure 1: Pension eligibility and size of benefits in 18 state supreme courts

As can be seen from the figure of justices’ retirement benefits, 87 percent of those who voluntarily retire are pension eligible (80 percent for elected and 95 percent for appointed courts), and the average justice earns approximately 59 percent of her active-status salary in retirement (53 percent for elected and 67 percent for appointed courts).

Using this new data, I weighed the likelihood of retirement in a given year against other factors such as partisan alignment with appointing elites, risk of electoral loss, etc. I studied the lengths of justices’ careers using a statistical method that examines the duration of events.

My analysis found that both elected and appointed state supreme court justices condition the timing of their retirements upon their pension eligibility. Nevertheless, the electoral connection hinders justices from earning as much in retirement as their peers on appointed courts. This is good evidence that state judges, like their federal counterparts, prefer to retire with pension benefits but that electoral risks or uncertainties inhibit their ability to increase these benefits.

I also found little evidence that state supreme court justices’ retirement decisions are politically motivated. This is somewhat surprising and inconsistent with prior work finding that appointed state supreme court justices retire when they are co-partisan with appointing elites, and elected justices retire when at risk of losing an election.

While my results are some of the first in the state courts literature to cast doubt on the theory of political retirements, they actually make this literature more consistent with studies conducted at the federal level. Analysis of large-N quantitative research on federal judicial departures demonstrates a clear split in the scholarly literature among those emphasizing the importance of political versus economic factors.

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