Want change at the Supreme Court? Try generosity. Congress should offer justices buyouts for early retirement. Less punitive than term limits or court expansion, buyouts could be effective without harming the integrity of the institution. Most importantly, they stand a chance of getting through the Senate.
Buyouts are optional and frequently large payments contingent upon retirement or resignation. During economic crises, they are a common, legal and effective means for companies to maintain profitability. But governments facing budget crunches use them too. Congress has empowered federal agencies to offer buyouts, which the Office of Personnel Management praises for bringing “needed organizational change with minimal disruption to the work force.”
The Supreme Court needs some organizational change of its own. Recent polling revealed that its public approval is at an all-time low, and that was before its latest week of controversial rulings. Notably, the most pronounced turn in favorability coincided with the recent shift to a 6-3 split in favor of Republican-appointed justices.
Two weeks ago, Justice Stephen Breyer retired. Though he denied that the timing of his departure was a partisan calculation, it nevertheless satisfied the political commandment of Supreme Court retirement: Stay on until a president of your party is in office and your age or health make it likely that your tenure will end during the presidency of the opposing party.
By complying, Breyer was able to avoid criticisms that befell his former colleague, Justice Ruth Bader Ginsburg, whose failure to retire during the presidency of Barack Obama helped lead to the demise of Roe v. Wade.
While Breyer’s timing gratified Democrats, the commandment is at the root of their Supreme Court malaise. So long as our two main parties trade the Oval Office in four- or eight-year intervals, adherence to it will likely keep the 6-3 split in favor of Republican-appointed justices intact.
It also gives justices very long tenures. Were they to wait until health or age forced them into the retirement calculus, Justices Ketanji Brown Jackson and Amy Coney Barrett would likely serve on the Court for 35 years or more. There is a good possibility that a President Biden or Trump nominee will be serving 120 years after the birth of those men.
The judiciary is our least democratic branch by design, but extended stays on the court greatly increase the probability that the values and ideologies of our justices will radically depart from the will of the majority.
All of this assumes that justices will time their retirements in furtherance of their ideological interests. There is evidence to support this assumption. A study of court retirements through 2006 published in the peer-reviewed journal Demography found that justices were almost three times more likely to retire when the incumbent president was of the same party as the president who nominated them and was in the first two years of a term.
But Supreme Court justices are human, and humans care about more than just politics. They care about money, too. The same study showed that becoming eligible for a pension more than quintupled the likelihood that a justice would retire that year.
While the influence of pensions may have waned in recent decades – indeed, four current justices are already eligible for full-salary pensions – it is unlikely that today’s justices have suddenly become indifferent to money. Moreover, the prospect of comfortable retirement might look more enticing now that justices are unpopular and require around-the-clock security.
To deter them from following the commandment, Congress should offer substantial buyouts to any Supreme Court justices who retire when they reach 10 years of service on the High Court. The five justices who have already exceeded that number should be eligible for the payment if they retire within one year. To overcome the considerable allure of ideological power, the sum should be in the millions.
To the many people who are angry at the Court, buyouts might seem like rewards for bad behavior. Critics have naturally gravitated towards retaliatory reforms, such as amending the Constitution to impose mandatory retirement ages or term limits or passing a statute that will increase the number of justices from nine to a dozen or more.
But practicality demands a different approach. A statute, particularly one that favors a single party, is unlikely to get through a filibuster. A constitutional amendment has no hope at all.
By contrast, buyouts are easy to enact. Like pension plans, they use public funds to address government staffing issues. Therefore, they can be passed through the reconciliation process, making them filibuster-proof. Indeed, the Senate parliamentarian recently concluded that increased funding to support failing union pensions was appropriate for reconciliation.
While some measures have failed because the parliamentarian found their budgetary dimensions to be incidental to their non-budgetary purposes, the outlay of funding here is essential to its purpose — it is the very incentive for retirement.
If Congress cannot be persuaded to pass a buyout plan, then President Biden might be able to gather sufficient discretionary funds for that purpose with money under his control.
The buyout proposal here also has the virtue of being a soft measure. Since it changes the court’s composition only if justices, themselves, choose to opt in, it does little to threaten judicial independence. Yes, five justices (Clarence Thomas, John Roberts, Samuel Alito, Sonia Sotomayor and Elena Kagan) would be incentivized to seek immediate retirement, which could create a windfall of vacancies for Biden. But there are nearly as many eligible Democratic as Republican appointees. And ideological motivations make it at least as likely that Justice Sotomayor would seek a buyout as Justice Thomas, since her replacement would be chosen by a Democratic president. Even if buyouts skew the partisan divide on the court toward equilibrium, the poll data suggest that would only ease the favorability crisis.
It is possible that buyouts will not persuade any justices to retire. No matter. A justice’s refusal will provide useful information to the public, making it easier to assess the degree to which they are beholden to the power of the office and, in turn, to the political commandment. Besides, the unspent funds can be directed toward other useful purposes.
Offering large sums of public money to the powerful is not an ideal solution. The legislative impasse, however, forces us to consider second-best measures. The Supreme Court might not deserve a carrot, but a big one can get it to move when the stick is broken.
Brian Sheppard is a professor of law and associate dean for J.D. and graduate admissions at Seton Hall Law School.