The Atlantic's political blog is reporting here that a day after he announced his impending retirement May 1, Justice David Souter spoke at an Oxford University alumni luncheon in Washington, D.C., along with Justice Stephen Breyer. After the talk, blogger Jeannette Lee asked Souter if he would have retired now if Republican candidate John McCain had been elected last November instead of Barack Obama.
"Probably," was Souter's reported answer. He added that he was nearing 70 years old, and had watched other justices wait to leave until their 80s, when "they have nothing left to retire to. I didn't want that to be me."
With that answer, Souter does not directly refute commentary suggesting that as a justice increasingly identified as a liberal, Souter waited to retire, for political or strategic reasons, until a president more to his liking than George W. Bush would be in a position to replace him. His comment may mean that if McCain had been elected, Souter might have left because he would not want to stay four more years for reasons of age -- not necessarily that he would have been equally happy for McCain to replace him. The late Chief Justice William Rehnquist, once asked whether justices time their retirements based on who is in the White House, said "it certainly is true in more cases than not."
Artemus Ward, a Northern Illinois University political scientist who wrote a 2003 book on why justices retire, thinks Souter's implicit denial of political motives is unsurprising, but needs to be taken with a grain of salt. "You would expect him to say that," says Ward.
Age is certainly a factor, Ward says, but the evidence points to Souter as "a prime example" of justices who time their retirements for strategic reasons, both political and institutional. Ward notes that under the federal "Rule of 80" for qualifying for full retirement pay, Souter could have retired anytime after May 2005. Retirement would have been unlikely in 2008 for institutional reasons -- justices don't like to retire in presidential election years to keep the Court from being a hot campaign issue. "So why didn't he retire in 2007?" Ward asks. The answer, he suggests, is that Bush was president then, and in a position to "undo Souter's legacy" by replacing him with a conservative nominee.
This article first appeared on The BLT: The Blog of Legal Times.