The Conservative Case for Clarence Thomas's Retirement

He'll do it -- if he cares about the ideas he's worked for in his decades on the court.

Timing is everything.

Photographer: Pool/Getty Images

At 80, Justice Anthony Kennedy is the oldest Republican-appointed member of the Supreme Court. But if he does retire at the end of the term in June, the stakes are enormous. He’s the swing vote in many crucial cases, and any replacement selected from President Donald Trump's Heritage Foundation-approved list would be at least somewhat more conservative, perhaps quite a bit more.

That’s why election law maven and court-watcher Rick Hasen floats the idea that another justice is about to bow out instead: Clarence Thomas.

It’s an extremely plausible theory. In these partisan times, it's probably the responsible partisan thing for Thomas to do. If he cares about the ideas he's worked for in his decades on the court, the correct thing to do is to at least strongly considering a resignation this year.

Thomas is, to be sure, relatively young -- he'll turn 69 this June. But Trump is not very popular at all, and Thomas would be 72 in January 2021, which means he would be 80 before a Democrat elected in November 2020 completed a second term. That may not bring an enormous risk that he'll die and give his seat to Democrats, given that Donald Trump could easily be re-elected despite his current unpopularity, and even if Trump loses there's no guarantee a Democrat would win a second term in 2024, but it's still more risk than most Republicans should want to see him take. Add to that the possibility that Democratic gains in 2018 could make it harder, or even impossible, for a very conservative justice to be confirmed after that.

Even apart from the risk of death, now is the time for Thomas to decide if he would like a retirement at a relatively early age. While Kennedy’s motives are decidedly mixed, Thomas would be weighing the same opportunity as Justices Ruth Bader Ginsburg and Steven Breyer during Barack Obama's presidency: Retire now, or risk being replaced with someone who will undermine a life’s work.

And, no, there's nothing at all wrong with partisanship in retirement decisions. The idea that the Supreme Court isn't a political branch has always been a complete fiction, and the idea that the justices have and should have no interest in partisan politics is a fiction, too. Of course no judge should rule for one side or the other in any case purely as a function of voting her partisanship. None do. But that's not unique to the bench; we don't expect legislators or presidents to explain their decisions purely in terms of party, either, and in fact they rarely do. Judges explain their decisions in terms of precedents and legal principles, just as members of Congress explain their votes in terms of representation.

But that doesn't mean judges are not political creatures. Of course not. The role they have is a political one. Federal (and many state) judges, especially at the appellate level, are determining the powers of the federal government, the rights of citizens, how industries are regulated. The meaning of laws and the Constitution.

That's why the Framers chose a political process of nomination and confirmation, rather than (say) give the job to a hereditary aristocracy. 

The truth is the more partisanship dominates judicial confirmations, the greater the pressure for presidents to appoint young judges and for those judges to quit at earlier and earlier ages in order to secure the seat. At least, if they act as partisans. That may be a good reason to change the way Supreme Court justices are regulated by the constitution, but for better or worse that's not going to happen any time soon. 

Granted, Thomas (and for all we know Kennedy as well) may have many more productive years on the Court if he chooses to remain where he is. And it's up to him and no one else to choose his priorities. If he cares about his own personal career, and not his party's control of the Court, then that's just how it is. However, the political incentives are very clear at this point. And there are few changes in Washington that could make more of an impact on the nation.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.