RBG Is Okay ... how about a baseball sock?

right? like people are gonna stop and be like “hey what’s with the sock?” making you seem like a very interesting, complex person with worldly, artistic taste and an enviable sense of humor

Nothing like Astros (for a minute, Mets back in the day) pitcher Collin McHugh's cool wife (both are very articulate and introspective about things and seem like down to earth people too cool for me to be near) to respond to me on Twitter to make my too many tweets worth it. The idea: what is better, a signed jersey or a sock, as a souvenir. I noted that a mounted sock would be an amusing conversation piece. A couple of women law professors liked somethng I said too. So, you know, swoon.

Since a nothing summer order list was not enough SCOTUS news, we had another update on RBG's ongoing medical issues.  She has been open about keeping people abreast of such things though learning about the procedure after the fact suggests she is selective.  So, we are left to continue to hope her health continues (in her frail looking, but healthier in some ways than someone much younger, ways such as her work out routines) for sixteen months or so.  Likewise, we get the "she [and Breyer] was stupid not to retire c. 2011 and everyone does it anyhow" takes that in time are harder (let's hope not totally so) to refute though they continue to be a tad overblown.

The idea that justices did not retire "strategically" -- as noted in that post -- is rather hard to refute.  But, you know, it was somewhat recently (note the examples) when you can cite loads of examples.  (Lower court judges also retired strategically too or just retire early for various reasons.)  Over the history of the Court, how many justices really retired early?  The history isn't too hard to check. Court after Court, up to the Warren Court involved justices who only left when they were sick, rather old or died.

My big thing is that the past in constitutional matters only should guide us so much as things change, but it is somewhat informative all the same. This includes the fact that current judges lived through this era and it guided their view of things. Warren is highlighted, but he is actually rather atypical. Clark was pushed off.  Goldberg pressured as well and how did the two liberals going off early for strategic reasons (if different ones) work? 

The examples provided also amount to justices lingering on longer than they might have wanted.  Byron White very well likely was influenced by politics, Clinton the sort of more conservative leaning Democrat he would be comfortable with too.  But, he was on the Court for thirty years (wow) at the time.  Compare this to Breyer. He was on for around fifteen (contrast this even with Stewart*). Why isn't this at least mentioned? It doesn't necessarily justify he staying on (personally, I think the case is harder for him though less so regarding a two term POTUS possibility)  but it seems like cheating not even to TALK about it.  The same with his general understanding of his place as some sort of pragmatic republican player, seeing the aftermath of Bush v. Gore as basically a victory of how the machine smoothly marched on. 

The idea of two justices blatantly resigning, at least one basically a decade before his time, for strategic reasons like this would very well not be a "yawn" moment, surely not for them.  Times have changed so I understand the sentiment that it would have been appropriate.  I understand how each had a view of their place, judges for thirty years and guiding the law in public service somehow for the rest of the time, mixed with (not only though) "ego" as one comment there noted.  Ego, I again note, works both ways there.  Good and bad.  Yes, RBG's husband dying factors in there as well as her new "Notorious RBG" persona though I think she had a firm sense of her place (now as the leader of the liberal wing, the last guy [guy] retiring at 90, and probably quite trusting Breyer who has a different approach) before that.  Again, I think the celebrity thing has gone too far but it's the era for that sort of thing as well. You take the good with the bad.

The Democrats easily could have lost the Senate in 2012 so 2011 (right after her husband died) would have been a prime chance for her at least to retire.  She wasn't on the Court for even twenty years (multiple male justices that she served with were on the Court for around thirty, again, something repeatedly not mentioned) and again was after years on the Court the senior liberal justice.  Not quite Stevens, who was more senior than Kennedy, but not a trivial place to be.   She had health issues but over and over again beat them.  O'Connor later felt she retired too soon to care for someone else (who had to go into a rest home right away anyhow, while she was replaced by someone who repeatedly was the fifth vote to overturn her opinions).  Another reason for RBG to be wary of a replacement, even one appointed by a member of the party who nominated her. 

In hindsight, though until she leaves not quite, her decision seems like a bad one. It looked like Clinton would win and a baby RBG would replace her.  You cannot have a clone though, including an angry former law clerk like Kennedy (who basically retired when he might have if given his druthers, after his thirtieth year, though he could have staid on or retired earlier if he had to ... again, is this ever noted? "strategic" has nuances).  But, the system in place also encourages a somewhat neutral "do this job until I am unable" sentiment that requires a lot to pre-emptively step aside.  Over and over again, people lingered on to long. It simply is not so very easy, even if she had some sort of obligation, to do leave early.

I personally never felt RBG had an obligation to retire though it was easier since I did not have to think about her being replaced by someone of another party.  We basically had even trades (if shifts like O'Connor-Alito) since the 1990s (White gave someone more liberal on some issues; the big one was Marshall with Souter turning out to be something of a relief). So, you get complacent there, I guess.  Term limits (which even more so seem like something due to come in the 2020s, which seems so far, but are not)  would help stable expectations with temporarily fill-ins (strategic retirements would therefore be open as a possibility but more limited in scope).  Also, I thought of her career as a whole and think she deserved some benefit of the doubt.  If she made a mistake here, some would just say it just tosses her life's work in the dustbin, so to speak.  But, it doesn't really since the world she helped bring still is here, the clock only so much able to be wound back.  Less so than some fear, enough to matter.

There was a mix of "things will turn out okay" in there that 2016 makes look stupid but she does serve on.  Each year and health scare makes one fear for that one incident, the odds getting a bit higher.  After all, that is a factor (far from the only one) that makes Biden look like a horrible choice.  So, I again, I understand though will defend and explain up to a point. More so Breyer, who one has little reason to think will not be around in 2021.  Breyer has come out as sympathetic about term limits unlike RBG too.  Anyway, you would figure he would follow her lead, one more reason to blame her, I guess.  No, you wouldn't think he would resign (with a bit less time, plus healthier) if she did not.  I find expecting him to resign even factoring in everything pretty lame honestly even if some strategic case can be made for something like that. When did some conservative in his place so retire?  Even if something is cited, it is not some obvious case.

The whole strategic retirement thing to me is bad policy but I'm not going to be all naive and say it isn't done. The path there to me is to have fixed terms. It won't totally change the practice though fixed terms can very well motivate people more to serve their whole terms given there are less years there.  Plus, the justices can still possibly fill in when there is a recusal or ala Souter even now do some lower court work.  The text seems to allow a "judge" position with twenty full years on the Supreme Court, still active to fill in as justice (so also "justice," a word that only pops up in reference to the Chief Justice presiding over impeachments)  and so forth. So, you still have life tenure (I think life tenure in a specific court is not quite the same thing but the text alone, without practice and theory, doesn't block this.) 

Long live Breyer and RBG, at any rate.

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* Justice Stewart looks to be an obvious strategic retirement but he really is an atypical case -- a modern day justice retiring in his mid-60s and not even someone like Souter who rather spend his days in his library in New Hampshire?  But, even he was approaching his 25th year and it is curious to consider that Stewart was aware of Reagan's promise to nominate a woman.  Again, there was not much of a sacrifice at all there.  In the end, he wound up dying a few years later anyhow.