Should we ask Supreme Court Justices to Retire?

Seth Masket ably makes the case for lobbying elderly Supreme Court Justices to step down.  Ginsburg and Breyer are quite elderly, and to be frank about it, are unlikely to make it to the next Democratic President after Obama.  And we know that Supreme Court Justices are a type of politician, albeit much more principled than most.  Supreme Court Justices are a lot like the type of politicians most people would say they want, who act with judgment and foresight to advance a vision of what is best for the country based on their experience, insight and wisdom.  Frankly, as a liberal, I would be pretty relieved if either of them decided to step down tomorrow and make way for a younger and healthier liberal Justice.  I see the case for pressuring them to step down.

And yet.

The authority the Supreme Court relies on is in some way a sleight of hand.  It is the pretense they are above politics and sit in sober disinterested judgment – which we all kind of know is a pretense but still badly want to believe.  Their legitimacy isn’t from popular acclamation and it certainly isn’t from their political activism – but they both have and need legitimacy.  In order to properly perform their constitutional duties, Supreme Court Justices need to be unafraid to take on political authorities when it is truly necessary.  There is some evidence that when their legitimacy is in question by the public, they are less willing to do so.

So while political scientists know that Supreme Court justices are really political actors, it’d probably be best if that didn’t become conventional wisdom.  Frankly, the normative issues seem pretty conflicted and there’s not necessarily an easy answer.


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