Election-year Supreme Court retirement unlikely

The Supreme Court is seen in Washington, early Monday, June 15, 2020. (AP Photo/J. Scott Applewhite)

WASHINGTON, D.C. — The last time a Supreme Court justice announced his retirement in a presidential election year, most of the current justices were too young to vote.

It was 1968, and things didn’t work out as planned. The nomination to replace Chief Justice Earl Warren failed in that turbulent year, and no justice has retired in an election year since.

The pattern is not likely to be broken in 2020, despite persistent chatter that Justice Clarence Thomas could give President Donald Trump a seat to fill before the election.

Retirements have tended to be announced in June, as Justice Anthony Kennedy did in 2018. But the conservative Thomas has made clear to anyone who has asked, including an interviewer last year, that he has no plans to retire.

“Let’s fast forward to 20 years from now. Twenty years from now, at your retirement party,” his interviewer, Pepperdine University law professor James Gash, began.

“I’m not retiring,” Thomas broke in to say.

“Twenty years?” Gash said.

“No,” Thomas said.

“Thirty years?” Gash followed.

“No,” Thomas said.

The 72-year-old Georgia native is the longest-serving justice on the current court. If he serves another eight years, he would eclipse the service of record-holding Justice William O. Douglas, whose tenure lasted 36 years and nearly 8 months.

If Thomas does stay that long, he’ll only be 80 — younger than Justices Ruth Bader Ginsburg and Stephen Breyer are today.

In 1968, Warren announced his retirement, but it didn’t take effect until the Senate confirmed his successor. President Lyndon Johnson quickly named Justice Abe Fortas for the job. The president also nominated a federal judge and friend from Texas, Homer Thornberry, for Fortas’ seat.

It didn’t go well for Fortas, whose nomination was blocked by Republicans and conservative Democrats in the Senate. Thornberry never got a vote either, once it became clear Fortas wasn’t moving up.

When Richard Nixon won the 1968 election, he got a bonus, the opportunity to select a chief justice who would be nothing like the liberal Warren. The outgoing chief justice served another year, until Warren Burger took the oath of office in June 1969.

The only other vacancy that has occurred in an election year since was in 2016, when Justice Antonin Scalia died. President Barack Obama named Merrick Garland to fill the seat and Senate Republicans refused to act on the nomination.

When Trump shocked the nation by winning the presidency, he too had a seat to fill and quickly named Justice Neil Gorsuch.


Enough of things that are not likely to happen.

For the first time in 24 years, the court’s work is almost certain to extend into July, mainly a product of the court’s response to the coronavirus pandemic.

The justices heard arguments by telephone in 10 cases in May, after closing the building to the public in mid-March and abandoning most in-person activities for a court in which 6 of the 9 justices are 65 and older, and most at risk of serious complications from COVID-19.

None of those cases has been decided yet, and the justices still have pending three earlier cases, including one dealing with abortion clinic regulations in Louisiana. More opinions are expected Monday and Tuesday, the last day in June.

Thomas, Ginsburg and Breyer were the only three justices who were on the court the last time it didn’t finish issuing opinions in June. That was in 1996, when the court held on July 1 that the government could be sued by once-healthy savings and loans that were forced into the red as part as the congressional response to the S&L crisis of the 1980s.

Charles Cooper, who argued the S&Ls’ case at the Supreme Court, recalled that a resolution was urgently needed “because scores of copy-cat cases had been clogging” court dockets for years.

The court also issued opinions in July a few years earlier, in 1989. That July, the court struck down a nativity display inside a government building in Pittsburgh, while upholding a menorah erected outside a different public building in Pittsburgh. The next day, the justices upheld or allowed to take effect several abortion restrictions in Missouri.

When Burger was chief justice, from 1969 to 1986, the court routinely kept working into July, even past Independence Day.

Adam Feldman, the creator of the Empirical Scotus blog, provided the data cited above.


Another reason there is no special urgency to finishing up by the end of June is that the justices have nowhere to go this year.

The last decisions of the term typically are followed closely by flights to very desirable locations, in the Alps, the Rockies, European capitals, even “an island fortress” in the Mediterranean, as Chief Justice John Roberts described Malta before heading there on the heels of his opinion saving the heart of the Affordable Care Act in 2012.

The law schools that usually are thrilled to snag a justice to teach for a week or two in a study-abroad program all canceled their summer sessions this year because of the coronavirus outbreak.

“I think we have reason to believe no one needs to jet off to Europe,” Supreme Court lawyer Paul Clement said, joking that the term could last to August 10 at the current pace of decisions.