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Strategic Retirement in
Comparative Perspective
SUPREME COURT JUSTICES IN PRESIDENTIAL REGIMES
ANÍBAL PÉREZ-LIÑÁN, University of Pittsburgh
IGNACIO ARANA ARAYA,Pontificia Universidad Católica de Chile
ABSTRACT
Students of judicial behavior debate whether justices time their retirement to allow for the nomination of
like-minded judges. Weformalize the assumptions of strategic retirement theory andderive precise hypoth-
eses about the conditions that moderate the effect of partisan incentives on judicial retirements. The em-
pirical implications are tested with evidence for Supreme Court members under democracies and dictator-
ships in six presidential regimes between 1900 and 2004.The theory of strategic retirement finds limited
support in the United States and elsewhere.We conclude that researchers should emphasize “sincere”mo-
tivations for retirement, progressive political ambitions, and—crucial in weaklyinstitutionalized legal sys-
tems—political pressures.
Do justices retire for political reasons? This question has important policy implications.
Supreme Courts comprise a small number of judges who make collective decisions with
lasting effects on the life of a nation. If justices can influence who will replace them by
timing their retirements strategically, even their decisions to leave the Supreme Court
may have a bearing on the direction of the legal system.
Early studies of the US Supreme Court treated decisions to retire as random events
(e.g., Wallis 1936), but later works advancedpolitical explanations for judicial retirements
(e.g., King 1987; Squire 1988; Hagle 1993). The contemporary literature claims that
justices prefer to leave the bench when they expect the president to nominate a like-minded
replacement. If the president has distant political views, judges will delay their depar-
Research for this project was supported by National Science Foundation grant no. 0918886 and by
FONDECYT project no. 3160357. We are indebted to Christopher Bonneau, Diana Kapiszewski, and
Julio Ríos Figueroa for their comments and assistance. Replication files for this article are available in
the online edition. Contact the corresponding author, Aníbal Pérez-Liñán, at asp27@pitt.edu.
Journal of Law and Courts (Fall 2017) © 2017 by Law and Courts Organized Section of the American Political Science Association.
All rights reserved. 2164-6570/2017/0502-0001$10.00
ture hoping that the ruling party will change in the future (Hagle 1993; Ward 2003;
Calabresi and Lindgren 2006).
However, the evidence in favor of strategic retirement is contested for the United States
(Squire 1988; Brenner 1999; Yoon 2006), and comparative studies of high courts in par-
liamentary systems have found very limited support for similar arguments (Maitra and
Smyth 2005; Kerby and Banfield 2014; Massie, Randazzo, and Songer 2014).
This article contributes to the debateon strategic retirement in two ways. First, we clar-
ify the empirical implications ofthe theory by formalizing its basic tenets. Second, we pro-
vide a cross-national test of those empirical implications, using the largest available data-
base on Supreme Court biographies in the Western Hemisphere. If strategic retirement is
a general pattern of judicial behavior rather than an inductive hypothesis derived from the
US case, we should find behavioral similarities in other democracies with comparable
nomination systems, even if other historical factors (i.e., confounders) differ. We compare
retirement patterns in the United States with five other presidential regimes: those of Ar-
gentina, Brazil, Chile, Mexico, and Panama. The Latin American countries were selected
because they have presidential constitutions in which the executive plays a central role in
the nomination process, a central assumption for strategic retirement theory, yet they pro-
vide considerable cross-national variance in other respects, including past experience with
democracy and judicial instability.
Our resultsshow consistent behavioral regularities across national cases (including the
United States), but the results are surprising. After clarifying the empirical implications
of the theory, cross-national evidence in favor of strategic retirement is scant. Combined
with evidence from previous studies of judicial retirements under parliamentary systems,
the findings suggest that most judges time their departures based on sincere motivations.
To the extent that judges ever retire for political reasons, the main motivation seems to
be progressive ambition—an incentive that has vanished in the contemporary United
States—rather than a systematic attempt to control the profile of their successors.
STRATEGIC RETIREMENT IN SUPREME COURTS
The most controversial hypothesis about vacancies in the US Supreme Court states that
justices time their retirement to allow presidents to nominate like-minded successors.
Strategic retirements can be crucial in a divided court where a single vote can be decisive.
1
However, scholars disagree regarding the role of political motivations. Some studies assert
that the decision to retire is contingent on the ideological compatibility between judges
and the incumbent president (King 1987; Hagle 1993; Ward 2003; Calabresi and Lind-
gren 2006), while others find no evidence to claim that justices retire for political reasons
(e.g., Squire 1988; Brenner 1999; Yoon 2006).
1. It is not uncommon for the US Supreme Court to hand down divided decisions. Tribe (1985,
32) described that 20% of the Court’s cases between 1974 and 1984 were decided on a 5-4 basis.
174 | JOURNAL OF LAW AND COURTS | FALL 2017
Such inconsistent findings may result from two different problems. First, the empirical
implications of this argument are not always straightforward, and different authors invoke
unique results as evidence in support of the theory. For example, Calabresi and Lindgren
(2006) find that judges are more likely to retire—rather than die in office—when the in-
cumbent president belongs to the party that nominated the departing judge. Hagle (1993,
36–37),by contrast, discovers that justicesare more likely to retire during the president’s
second term in office and are less likely to do so when they are former politicians. Zorn
and Van Winkle (2000) find that justices tend to retire at the beginning of the president’s
second term, inferring that justices thus allow the president to fill the position with a like-
minded successor. Kerby and Banfield (2014) find that justices in Canada, Australia, and
New Zealand are more likely to retire in electoral years, inferring from this fact that judges
expect their parties to lose the general election.
These examples suggest that quite disparate empirical findings are offered as evidence
of the theory. In the following pages, we employ a simple model to derive crisp empirical
implications from the theory’s core assumptions. We identify the fundamental implication
of the theory, plus three secondary corollaries that are often overlooked in the literature.
Second, empirical studies may offer weak or conflicting results because the number
of justicesserving in the USSupreme Court has restricted the size of the sample available
to test models of strategic retirement. Scholars have confronted this challenge by analyzing
state supreme courts or lower courts (Nixon and Haskin 2000; Hall 2001), but the po-
litical issues at stake—and thus the incentives to retire—may be quite different across lev-
els of the judiciary. Other scholars have tested the theory with evidence from parliamen-
tary systems (Maitra and Smyth 2005; Kerby and Banfield 2014; Massie et al. 2014).
These cross-national studies have found very limited evidence in support of political res-
ignations, but the nomination process tends to be less politicized in most parliamentary
regimes.
Besides those two problems, weak findings could also indicate that most judges retire
for “sincere”reasons, including bad health and retirement benefits. As Stras (2006, 1444)
notes, “Infirmity, both mental and physical, is the single greatest disadvantage associated
with life tenure”(Squire 1988; Atkinson 1999; Garrow 2000; Zorn and Van Winkle
2000; Ward 2003). Studies have shown that retirement provisions with generous ben-
efits provide strong incentives to retire in the United States (Squire 1988; Zorn and
Van Winkle 2000; Ward 2003; Yoon 2006) and elsewhere (Maitra and Smyth 2005).
THE LOGIC OF STRATEGIC RETIREMENTS
Although the idea of strategic retirement is straightforward, few studies derive precise be-
havioral predictions from the theory. As a result,authors invoke disparate findings as con-
firmatory evidence. To address this problem, we formalize the argument and identify the
fundamental empirical implication of the theory, plus a few additional corollaries.
Strategic retirement involves a decision in which a judge compares the utility from
giving up her position today against the expected utility of a lottery played if she stays
Strategic Retirement in Comparative Perspective |175
in office.
2
The theory assumes (at least) two moments, which we can generally call present
and future.
3
If the judge retires today, she relinquishes the benefits of office (call them s), in ex-
change for retirement benefits, r.
4
In addition, the judge anticipates that the partisan
composition of the court will remain equal to P/Nif the president is a co-partisan or
it will become ðP21Þ=Nif the president is not a co-partisan, where Pis the number
of justices who belong to the judge’s party and Nis the size of the court. For notation
purposes, we use c∈f0, 1gto represent the president’s expected nomination, with
c51 indicating that the president would nominate an acceptable co-partisan replace-
ment and c50 ndicating that he would nominate a distant replacement.
5
Thus, a re-
tiring judge expects to derive utility u½ðP211cÞ=Nfrom the new Court, where uis
a monotonically increasingly but possibly nonlinear function.
If, on the other hand, the justice stays in office, there is always the possibility that aging,
bad health, or other factors will compel her exit in the future. The judge anticipates the risk
of involuntary departure with probability r. If the justice completes her second period, she
receives payoff splus whatever utility is derived from the existing court,u½P=N. If instead
nature forces the justice to retire, the judge receives rand the president is allowed to
nominate a replacement. Because the executive may have changed by the time the judge
is compelled to retire, assume that nature will reset the location of the executive by select-
ing a president from the opposite party with probability q. The judge thus anticipates a
future court P/Nwith probability ð12rqÞand ðP21Þ=Nwith probability rq.
Figure 1 summarizes the structure of the argument. This sequence represents the core
assumptions shared by all versions of strategic retirement theory.
Given this setup, a judge retires when
c211rqðÞuP
N
2uP21
N
>12rðÞs2rðÞ:(1)
Retirement is rational when the advantage offered by a co-partisan president (c51)
for the nomination of a successor is greater than the benefits of office (after considering
retirement benefits as well as the risk of an involuntary exit in the future). Crucially, the
advantage offered by a co-partisan president becomes more relevant as the risks of invol-
untary exit (r) and of party turnover (q) loom larger in the near future.
2. For clarity of presentation, we employ the female pronoun for the judge and the male pronoun
for the president.
3. Theories of strategic retirement do not assume that judges discount the future; thus our model
ignores the issue of discounting.
4. We follow the literature in assuming that retirement benefits are entitlements (e.g., Maitra and
Smyth 2005), which means that ris available in the present and in the future. We address selective in-
centives (present offers that disappear if the judge declines to retire) in the empirical section.
5. All versions of the theory assume that, in subgame perfect equilibrium, the president will nomi-
nate a judge aligned with his preferences. We therefore omit the president’s strategy in the model.
176 | JOURNAL OF LAW AND COURTS | FALL 2017
Some corollaries of this model simply capture conventional wisdom. For example,
justices are unlikely to retire when they are not co-partisans with the president (the left-
hand side of eq. [1] becomes negative when c50), unless considerable retirement ben-
efits are offered. Similarly, judges will retire when they approach an old age (as r
approximates one, the right-hand side of the equation approaches zero).
More important, however, equation (1) also provides the logical foundation for em-
pirical implications overlooked in the literature. Prior studies have anticipated a greater
rate of retirements among judges whohave convergent views with the president, without
specifying scope conditions for this hypothesis. The model shows that four factors should
moderate the effect of partisan convergence on strategic retirements.
(1) If the judge and the president are co-partisans (c51), the ideological benefits of
strategic retirement, represented by uðP=NÞ2u½ðP21Þ=N, are conditional on the
risk of involuntary exit, represented by r. Age and infirmity are not alternative explana-
tions for retirement; they are part of the motivation for strategic behavior. Judges are
unlikely to entertain their departure when they are young, but they are forced to con-
sider the partisan consequences of their choices as they approach retirement age.
6
This is
the fundamental empirical implication of strategic retirement theory:
Hypothesis 1. Partisan convergence between a judge and the incumbent pres-
ident should produce greater incentives for retirement when the judge is older.
The fundamental empirical implication is usually implied in the literature, but it is rarely
formulated with precision and tested appropriately. The model also allows us to derive
three additional empirical corollaries:
(2) A similar conditional effect is created by the likelihood of party turnover, repre-
sented by q. A judge would have few incentives to strategize the timing of her retirement
in an authoritarian system with no party turnover, because the same incumbents would
Figure 1. A model of strategic retirement
6. This expectation is consistent with findings for state supreme courts, which show that justices are
likely to retire when they confront greater risk of defeat in partisan or retention elections (Hall 2001).
Strategic Retirement in Comparative Perspective |177
nominate any replacement. Strategic retirements are driven by a comparison between
current political circumstances and future political conditions that become uncertain
only in contexts of effective party competition. Therefore:
Hypothesis 2. Partisan convergence between a judge and the incumbent pres-
ident should increase incentives for retirement in competitive political regimes.
(3) Incentives to retire depend on utility function u. Consider a judge with weak
partisan ties, such that u→0: her incentives for strategic retirement would be almost
null. In contrast, judges involved in politics are more sensitive to partisan outcomes,
such that u>0. In line with this claim, Hagle (1993) argued that justices with prior
political experience are more inclined to time their retirement for ideological reasons.
7
It follows that:
Hypothesis 3. Partisan convergence between a judge and the incumbent pres-
ident should expand incentives for retirement when the judge has a prior partisan
career.
(4) It is fair to assume that uis a monotone but nonlinear utility function with respect
to (P/N).
8
If a judge retires from a nine-member body, leaving it with eight co-partisan
judges would not presenta dilemma, but leaving it with only four co-partisans would alter
the balance of power in the Court. For example, in their study of the Canadian Supreme
Court, Kerby and Banfield (2014) noted that Liberal Party–appointed judges often retired
when Conservatives were in power. The authors concluded that, given their dominant po-
sition, Liberal judges could retire “without dramatically changing the ideological balance
of the bench”(350). Thus:
Hypothesis 4. Partisan convergence between a judge and the incumbent pres-
ident should produce greater incentives for retirement when the court is divided.
The four conditional hypotheses follow from the core model of strategic retirement,
without introducing ad hoc assumptions about delays in nominations, the electoral calen-
dar, or other factors. If judicial retirements happen in line with the theory, we should ob-
serve the predicted patterns of behavior under a wide range of circumstances. Failure to
document such patterns would cast doubts on common assumptions underpinning all
strategic retirement arguments.
7. Between 1900 and 2010, 52% of the justices in the United States, 52% in Argentina, 55% in
Mexico, 14% in Chile, 52% in Brazil, and 43% in Panama had served in political posts before or after
serving in the Court (see Crowe and Karpowitz 2007).
8. Such as uðP,NÞ5expðP2N=2Þ=½11expðP2N=2Þ.
178 | JOURNAL OF LAW AND COURTS | FALL 2017
CASE SELECTION
We test the hypotheses using data for the United States and five Latin American countries.
The analysis follows a most-different systems design (Przeworki and Teune 1970; Berg-
Schlosser and De Meur 2009). Verification of similar results across disparate historical
cases should strengthen the external validity of our findings.
Studies of strategic retirement have focused on the United States and a few industrial
democracies with parliamentary systems, such as Australia, Canada, New Zealand, and the
United Kingdom (Kerby and Banfield 2014; Massie et al. 2014). We complement those
studies by comparing the United States with Argentina, Brazil, Chile, Mexico, and Pan-
ama. This strategy allows us to focus on presidential systems where the executive plays a
central role in the nomination of Supreme Court justices (a crucial fact for the theory),
while it maximizes variance in mediating factors and potential confounders.
9
Three concerns affect the use of Latin American cases to assess strategic retirement
theory. The most obvious one is the history of regime instability that plagued the region
for most of the 20th century. We leverage this experience with authoritarian rule in favor
of our empirical design because variance in partycompetition is necessaryto test hypoth-
esis 2. In authoritarian regimes without an expectation of party turnover, strategic retire-
ment should not take place.
Table 1 shows that our cases differ considerably in their historical experience with de-
mocracy and thus in levels of party competition and judicial independence. Between 1900
and 2004, the United States was always coded as a full democracy by the Polity IV index,
which ranges from 210 (institutionalized autocracy) to 110 (institutionalized democ-
racy). Other countries in the sample, by contrast, varied considerably during this period.
Similarly, the United States ranks above all other cases in Linzer and Staton’s (2015) mea-
sure of judicial independence, available since 1948. To account for those differences, we
estimate models for each country, pool all cases while controlling for levels of democracy,
and test the hypotheses with a subset of democratic regimes. The results are consistently
similar across all tests.
A second concern, related to the previous issue, refers to the problem of judicial purges.
Several studies have noted that judicial tenures in Latin America are often uncertain, as
political leaders forcethe resignation of hostile justices (Helmke 2005, 2016; Lara Borges,
Castagnola, and Pérez-Liñán 2012; Pérez-Liñán and Castagnola 2016). If judicial turn-
over in Latin America is essentially the result of unconstitutional mechanisms, high courts
in the region may not provide useful information to test theories of voluntary retirement.
Fortunately, the proportion of forced departures in most Latin American cases selected
for comparison is relatively small. Only 2% of all judicial exits in Chile (3 of 131), 5% in
Brazil (5 of 108), and 6% in Mexico (13 of 204) were identified as forced removals—as
9. When discussing supreme courts, we refer to the Corte Suprema de Justicia in Argentina, Chile,
and Panama; to the Suprema Corte de Justicia de la Nación in Mexico; and to the Supremo Tribunal
Federal (STF) in Brazil.
Strategic Retirement in Comparative Perspective |179
Table 1. Country Comparison, 1900–2004
Country Constitutional Selection Procedures Constitutional Term Limits
Pension Benefits
Since ...
Conditions for
Retirement Benefits
Polity Score
Mean (Minimum,
Maximum)
Linzer-Staton
Mean (Minimum,
Maximum)
United States President nominates, Senate confirms Life tenure 19th century Until 1954, 70 after 10 years
of service; since then, 65
after 15 years of service
10.0 .98
(10, 10) (.97, .99)
Argentina President nominates, Senate confirms Life tenure 19th century Age 60 .2 .30
(29, 8) (.06, .58)
Brazil President nominates, Senate confirms Life tenure until 1933;
mandatory retirement at
ages 75 (1934), 68 (1937),
70 (since 1946)
19th century Between 30 and 35 years
of service
21.0 .38
(29, 8) (.08, .64)
Chile President nominates from list offered
by Supreme Court; Senate confirms
since 2001 (list offered by Council
of State until 1925)
Life tenure until 1979;
mandatory retirement at
age 75 (since 1998)
1924 Age 65 or 30 years
of service
2.5 .46
(27, 9) (.10, .92)
Mexico President nominates, Senate confirms;
president nominated de facto until
1927 (de jure confirmation by
indirect election until 1917,
Congress until 1927)
Life tenure or terms with
reappointment until 1993;
15 year-terms (since 1994)
1925 Ages 55–65 24.1 .36
(29, 8) (.28, .49)
Panama President nominates, Assembly confirms;
president appointed until 1941
Fixed terms with
reappointment
1943 Ages 57–62 2.5 .32
(28, 9) (.06, .51)
opposed to voluntary retirements or deaths in office. In contrast, Panama, with 32% (8
of 25), and Argentina, with 58% (41 of 71), present a more dramatic pattern of judi-
cial ousters. The overall proportion of removals for the Latin American sample is ap-
proximately 13%.
To account for this problem, we treat all involuntary retirements as right-censored ob-
servations; that is, we assume that judges would have stayed on the job if they had been
allowed to. Retirements are coded as involuntary when justices were impeached, removed
after a military coup, or forced to resign in the midst of a revolution or a regime transition.
Observations are also treated as censored when justices died in office, if they reached a
mandatory retirement age, and if they departed after completing a constitutionally fixed
term in office. Those individuals contribute to the estimation of the hazard function, but
their departures do not alter the likelihood of voluntary retirements.
It is possible that subtle political pressures have induced some exits that appear to be
“voluntary”in the historical record (Castagnola 2012). However, such exits should
stand out in the empirical analysis, presenting a stark contrast with the expected pattern
for voluntary retirements. Incentives for strategic retirement, as indicated by hypoth-
esis 1, should prevail among judges aligned with the president who are close to retire-
ment age. Pressures for departure, by contrast, should target judges who are not aligned
with the president and who are far from retirement, in order to preempt their future in-
fluence in the Court. We will analyze such “hidden”involuntary retirements in our dis-
cussion of empirical findings below.
The third concern is the dearth of historical sources. Although most Latin American
countries have few reliable records about past court members, we have selected five cases
that have sufficient biographic data for our study. A list of primary sources is provided in
the appendix. We conducted archival work with an international team of research assis-
tants, limiting the analysis to justices in office between 1900 and 2004 because sources
are scarcer for earlier periods. Our data set constitutes the most extensive biographic file
available for justices in the Western Hemisphere.
Despite these challenges, our comparative strategy presents important advantages. The
six countries have presidential constitutions that empower executives to influence high
court appointments. Table 1 shows that, in all cases, judges need to consider the prefer-
ences of the executive when contemplating retirement. Although the specifics of the nom-
ination process may differ slightly (e.g., the president nominates from a restrictive list of-
fered by the Supreme Court in Chile), nomination procedures employed in these legal
systems resemble the UScase more than the procedures employed in other countries cov-
ered by the literature, such as Australia, Canada, New Zealand, or the United Kingdom.
Legal regulations in all six countries give judges the possibility of retiring voluntarily af-
ter many years of service. They grant judges life tenure or impose mandatory retirement
only at an elderly age. The only case with fixed terms and no reappointment, Mexico since
1994, provides for very long terms in office (15 years). Most justices in our sample have been
entitled to receive pension benefits,and conditions for retirement are similar across cases.
Strategic Retirement in Comparative Perspective |181
While these similarities in the nomination procedure and judicial terms are key to the
scope conditions of the theory, differences across countries allow us to test important em-
pirical implications of the model, verifying if predicted patterns of retirement take place
under the conditions advanced by the theory.
DATA AND METHOD
Because our dependent variable reflects individual time-to-retirement, and because the
main hypothesis (hypothesis 1) refers to individual predictors, we estimate a discrete-
time-duration model in which the unit of analysis is the justice-year (Box-Steffensmeier
and Jones 2004, chap. 5).
10
Our complete sample includes 761 justices in office during
the period 1900–2004. We have complete biographic information for 669 judges, or a
total of 6,678 observations.
11
The event of interest is captured by a dichotomous indi-
cator that reflects judges’voluntary retirements.
The independent variables provide measures for our four hypotheses, plus several al-
ternative explanations:
Co-partisanship
As a measure of proximity between the president and each justice, we employ a dichoto-
mous variable (Co-partisan) that takes a value of 1 when the president belongs to the party
that nominated the justice.
12
This indicator follows a conventional operationalization in
studies of strategic retirement (e.g., Hagle 1993; Zorn and Van Winkle 2000; Ward
2003; Calabresi and Lindgren 2006).
Age and Infirmity
The literature has relied on different measurements of infirmity. Squire (1988) measured
justices’health by coding major disabilities, but this information is unavailable for our
cases. Zorn and Van Winkle (2000) estimated the justices’condition based on their pro-
ductivity, but productivity can respond to different causes (e.g., training or motivation).
Stolzenberg and Lindgren (2010) claim that the number of years left until the justice’s
death constitutes the best measure of health. Unfortunately, this measure restricts the anal-
ysis to deceased justices.
To assess the risk of involuntary retirement, we include the Age of the Justice.Thismea-
sure reflects that risks of infirmity anddeath increase as judges become older, while avoid-
10. We employ a logistic estimator with frailties by individual judge. Given the inclusion of the
justice’s age in our model, we do not adjust the baseline hazard for the number of years in office (Carter
and Signorino 2010), which is a very similar predictor.
11. Data were missing for 11 justices in Argentina, 7 in Chile, 29 in Mexico, and 45 in Panama; it
was complete for Brazil and the United States. See the appendix for primary sources.
12. This variable captures whether the president belongs to the same party that controlled the exec-
utive branch when the justice entered the Supreme Court. For justices appointed during military dicta-
torships, the armed forces were treated as the nominating “party.”
182 | JOURNAL OF LAW AND COURTS | FALL 2017
ing the practical limitations of other health indicators (see Squire 1988; Zorn and Van
Winkle 2000; Stolzenberg and Lindgren 2010). Because our first hypothesis claims that
the effect of partisan convergence is conditional on the age of justices, our models include
an interaction between Co-partisanship and Age.
Competitive Regimes
Our second hypothesis claims that the effect of partisan convergence is conditional on po-
litical competitiveness. Democratic regimes allow for government turnover and thus force
judges to anticipate the partisan identity of future presidents. In contrast, authoritarian
regimes constrain party competition, minimizing this source of uncertainty. Moreover,
authoritarian regimes may force judges who identify with opposition parties to resign
(Helmke 2005; Marcilese 2010; Solomon 2010). Our model includes the Polity IV in-
dex. To assess our second hypothesis, we include an interaction between Co-partisanship
and the Polity Index and anticipate that the conditional effects of co-partisanship will be
stronger in more democratic environments. In some models,discussed below, we repre-
sent the full moderating effects of rq in the decision model by including a triple inter-
action between co-partisanship, age, and democracy.
Prior Political Career
Following Hagle (1993), we measure partisan incentives by including a dichotomous var-
iable that identifies judges who had a Prior Political Career before joining the Supreme
Court. Judges who were presidents, vice presidents, governors, mayors, senators, represen-
tatives, members of constitutional assemblies, cabinetministers or secretaries, undersecre-
taries, ambassadors, consuls, subnational legislators, and city councilors were coded as pol-
iticians. To assess our third hypothesis, empirical models include an interaction between
Co-partisanship and a Prior Political Career.
Divided Court
We measurethe composition of the court by capturing the Proportion of Opposition Judges
(defined as sitting justices originally nominated by parties other than the president’s) in
any given year. According to our fourth hypothesis, incentives for strategic retirement
should be greater when the court is divided. The hypothesis suggests that the probability
of voluntary exit among judges in the president’s party should follow an inverted-U pat-
tern, with maximum values peaking around 0.5. Therefore, we include a quadratic term
for this variable and model the interaction of co-partisanship with the linear and quadratic
terms for the proportion of adverse judges.
The literature has identified other variables that we include as potential controls.
Retirement Benefi ts
Historically, the introduction of retirement benefits has provided strong incentives for ear-
lier retirement (Squire 1988; Zorn and Van Winkle 2000; Ward 2003; Maitra and Smyth
Strategic Retirement in Comparative Perspective |183
2005; Yoon 2006). This effect is captured by rin the decision model. The provision of
retirement benefits creates a shift in the baseline hazard for each country’ssampleover
time. Because of this reason, we include an indicator that captures if a justice Qualifies
for Retirement Benefits. This variable is coded with a value of 1 if the Supreme Court has
a retirement package in place and the individual fulfills its requirements in any given year,
0 otherwise.
Static Careers
The role of parameter sin the model is consistent with claims about the role of salaries in
discouraging retirements from USfederalcourts (Spriggs and Wahlbeck 1995; Nixon and
Haskin 2000; Hansford, Savchak, and Songer 2010). Unfortunately, data on remunera-
tion and workloads are unavailable for other courts over long historical periods, butthese
are not the only motivations to pursue static careers. Given the varying levels of profession-
alization across countries and historical eras, we expect that justices recruited among pro-
fessional judges will see the Supreme Court as the highest point in their careers (see Wood
and Marchbanks [2008] for a similar case in the executive branch). As a measure of static
career incentives, we employ an indicator taking the value of 1 when the justice has expe-
rience on the bench before the Supreme Court and 0 otherwise.
First Year of the Last Term
The literature on the United States has emphasized that judges are more likely to retire
early in the president’s second term, once the incumbent confronts term limits but while
the administration is still strong. We include a dichotomous variable (First Year of the Last
Term) to control for this term-limit effect. Ittakes the value of 1 for the first year of an ad-
ministration if the president cannot be reelected. About 21% of the justice-years in the
sample fall under this situation.
Progressive Careers
An extensive literature in political science has emphasized the influence of progressive
ambition on the decisions of politicians and public officials (e.g., Brace 1984; Harrington
2000). Vining, Zorn, and Smelcer (2006) examined the political ambitions of American
Supreme Court justices in the period 1790–1868. The authors found that political am-
bitions constituted the main cause behind justices’decisions to resign. For some individ-
uals and under some historical circumstances, the prospect of a political career may be
more enticing than the Court.
13
An analysisof progressive ambition provides a sharp test
for the influence of post-retirement opportunities: while retirement benefits are constant
for all judges above a certain age, prospects ofa successful political career vary considerably
across individuals. Moreover, political posts may be offered to induce timely retirements
13. In the United States, only seven justices have left the bench for a political career, and just three
of them have done so since 1900 (Epstein et al. 2006).
184 | JOURNAL OF LAW AND COURTS | FALL 2017
from the court.
14
We employ a dichotomous indicator to identify justices who pursued a
Progressive Career after retirement. We coded as progressive careers all instances in which
justices occupied a political position after leaving office.
15
This is an imperfect measure:
some judges with progressive ambitions may have failed to achieve a desired position after
retirement, and others may have failed to anticipate their political futures at the time they
left the court. However, this proxy helps us separate the effects of partisanship (as mea-
sured by a political past) from the effects of progressive ambition (as reflected in a political
future).
Table 2 offers descriptive statistics for our sample. The table compares the means for
the United States and the Latin American cases and provides the observed range for each
variable inthe whole sample. The probability of voluntary exit for the pooled sample on an
average year is .051. Thus, the typical justice will stay on the bench for 19 years before
taking up voluntary retirement. The table also indicates that a vast majority of Supreme
Court justices were recruited from the judiciary and that the number of judges who were
politicians before reaching the Supreme Courtis far greater than the number who left the
Court to pursue an active political life.
14. The literature on US political appointees has noted that opportunities in the private sector are
another incentive to quit public posts (Wood and Marchbanks 2008). Given the prestige of the Su-
preme Court, it is unlikely that justices will return voluntarily to private practice (but see Basabe 2011).
15. Progressive careers include presidents, vice presidents, governors, mayors, senators, representa-
tives, constitutional assemblies, cabinet secretaries, undersecretaries, ambassadors, consuls, subnational
legislators, and city councilors.
Table 2. Means for Voluntary Retirement and Independent Variables
United States Latin America All
(N5983;
60 Subjects)
(N55,695;
609 Subjects)
(N56,678;
669 Subjects)
Variable Mean
Minimum,
Maximum Mean
Minimum,
Maximum Mean
Minimum,
Maximum
Voluntary exit .04 0, 1 .05 0, 1 .05 0, 1
Predictors
Co-partisan president .59 0, 1 .53 0, 1 .53 0, 1
Justice’s age 64.7 41, 91 60.4 30, 93 61.2 30, 93
Polity score 10 10, 10 2.90 29, 9 .71 29, 10
Prior political career .52 0, 1 .39 0, 1 .42 0, 1
Proportion of opposition
judges .42 0, 1 .51 0, 1 .50 0, 1
Qualifies for retirement benefits .33 0,1 .52 0,1 .51 0,1
First year of the last term .07 0, 1 .24 0, 1 .21 0, 1
Static career .65 0, 1 .80 0, 1 .78 0, 1
Progressive career .03 0, 1 .08 0, 1 .07 0, 1
Strategic Retirement in Comparative Perspective |185
EMPIRICAL RESULTS
We begin by testing the fundamental empirical implication of the theory (hypothesis 1)
for the United States and five other countries in table 3. The table presents discrete-time
duration models for voluntary retirements (entries are logistic coefficients). The estimator
employs frailties by judge to account for unobserved conditions shaping the baseline haz-
ard at the individual level. In order to capture the conditional effect depicted by hypothe-
sis 1, we model the interaction between co-partisanship and age. The Polity index drops
from 3.1 due to lack of variance in levels of democracy in the US case.
Evidence infavor of strategic retirement at an older age is weak but fairly persistent in
three of the six cases (the United States, Brazil, and Mexico). Based on estimates from
models 3.1–3.6 of table 3, table 4 compares the marginal effects of co-partisan alignment
for judges of ages 60 and 80 in each country. The theory implies that the marginal effect of
Table 3. Tests of Hypothesis 1, by Country
United States Argentina Brazil Chile Mexico Panama
(3.1) (3.2) (3.3) (3.4) (3.5) (3.6)
Co-partisan 24.71 12.75 215.38** 25.70* 24.33** 3.28
(3.65) (8.88) (4.79) (2.48) (1.63) (4.06)
Justice’s age .05 .01 .10** .07** .04* .00
(.05) (.08) (.03) (.02) (.02) (.06)
Co-partisan age .07 2.20 .24** .07* .07** 2.10
(.05) (.14) (.07) (.03) (.03) (.08)
Polity score .01 2.10** .02 2.06
1
2.20
(.06) (.03) (.02) (.03) (.13)
Prior political career .65 21.32 2.65* .61
1
2.08 1.40
1
(.40) (.94) (.32) (.36) (.22) (.83)
Proportion opposition 10.53* 23.13 24.87* 28.16** 22.57
1
27.94
1
(4.65) (4.47) (2.10) (2.34) (1.34) (4.61)
(Proportion opposition)
2
211.06* 2.71 4.32* 6.39** 3.51** 7.19
1
(4.68) (3.88) (1.79) (1.85) (1.28) (3.97)
Benefits .37 4.66* .28 2.42 .46
1
.39
(.63) (2.22) (.45) (.31) (.25) (1.14)
First year last term 2.60 2.09 .56
1
2.03 .75** 21.56
1
(1.04) (.78) (.32) (.30) (.22) (.89)
Static career 2.61 2.18 2.97** 2.43 2.30 2.04
(.40) (.87) (.32) (1.16) (.24) (1.11)
Progressive career 1.51* 3.26* 1.24* 1.05* .99** 1.59
1
(.69) (1.55) (.49) (.47) (.25) (.93)
Constant 29.03* 28.20 28.21** 24.22* 25.79** 23.13
(3.74) (6.42) (1.67) (1.86) (1.20) (3.43)
Justices 60 75 132 151 186 65
N983 597 1,414 1,468 1,738 478
Note.—Dependent variable is voluntary exit. Entries are logistic coefficients. Models include frailties by justice.
Standard errors are in parentheses.
1
p<.10.
*p<.05.
** p<.01.
186 | JOURNAL OF LAW AND COURTS | FALL 2017
co-partisanship should be positive and significant for the older judges and feeble for the
younger ones. In line with hypothesis 1, a co-partisan judge of age 80 in the United States
is 2.8 times more likely toretire than an opposition judge of the same age, but this differ-
ence is barely significant at the .10 level. A similar pattern is visible for Mexico (p<:10).
In Chile, the effect is smaller and statistically insignificant, consistent with the traditional
image of an “apolitical”Court (Hilbink 2007). No evidence in favor of hypothesis 1 is
present for Argentina and Panama, where involuntary exits have been more common.
Only Brazil displays a significant increase in the risk of retirement among older co-
partisans. The unrealistic size of the marginal effect (co-partisans are 32 times more likely
to retire) and its wide confidence interval are partly explained by the low density of em-
pirical support. Due to mandatory retirement, only six Brazilian judges in our sample re-
mained in office past the age of 75, and only two did so past the age of 80. It is quite
possible that some judges in Brazil and the United States have timed their retirements
strategically for partisan reasons, but we have little evidence to conclude that this is a gen-
eral pattern of behavior.
Testing hypothesis 2 requires variance in levels of democratic competition. For this
purpose, table 5 pools all countries and employs frailties by judge to account for unob-
served conditions shaping the baseline hazard at the individual and country levels. The first
model, provided for reference, includes all independent variables but no interactions.
Model 5.2 oftable 5 incorporates interactionsto test hypotheses 1 (about the moderating
effects of age) and 2 (democratic competition); model 5.3 adds further interactions to test
hypotheses 3 (about the moderating effects of a previous political career) and 4 (court
balance); and model 5.4 incorporates a triple interaction among co-partisanship, age,
and democracy to provide an unconstrained specification reflecting the effect of rq in
equation (1). In spite of the increasingly complex specifications, the results are consistent
across all models, so we present a unified discussion.
The large number of interactions complicates a straightforward interpretation; we
therefore plot the predicted probability of voluntary retirement (based on model 5.4 of
Table 4. Effects of Co-partisan Alignment at Ages 60 and 80, by Country
Country Age 60 99% CI Age 80 99% CI
United States .67 [.11, 3.97] 2.80
1
[.58, 13.52]
Argentina 2.08 [.04, 100.59] .04 [.00, 24.07]
Brazil .29* [.06, 1.37] 32.08** [2.08, 495.65]
Chile .29** [.09, .98] 1.27 [.39, 4.14]
Mexico .74 [.28, 1.96] 2.82
1
[.61, 13.14]
Panama .06
1
[.00, 4.30] .01
1
[.00, 10.01]
Note.—Values are odds ratios for the marginal effect of co-partisanship at ages 60 and 80, based on models 3.1–3.6
of table 3, In brackets are 99% confidence intervals, which are reported to account for random discoveries.
1
p<.10.
*p<.05.
** p<.01.
Strategic Retirement in Comparative Perspective |187
Table 5. Pooled Models of Voluntary Retirement, 1900–2004
Hypotheses
Baseline H1–H2 H1–H4 H1–H4
Variable (5.1) (5.2) (5.3) (5.4)
Co-partisan president 2.27 23.43** 23.28** 23.07**
(.17) (.94) (1.06) (1.06)
Justice’s age .07** .05** .05** .05**
(.01) (.01) (.01) (.01)
Polity score 2.04** 2.05** 2.05** 2.31**
(.01) (.01) (.01) (.10)
Prior political career .00 .02 2.08 2.09
(.12) (.12) (.16) (.16)
Proportion opposition judges 23.16** 23.30** 22.50 22.39
(.66) (.68) (1.68) (1.69)
(Proportion opposition)
2
2.99** 3.00** 2.48
1
2.43
1
(.61) (.63) (1.29) (1.30)
Qualifies for benefits .22 .25 .26
1
.25
(.15) (.15) (.15) (.16)
First year of last term .28* .28
1
.28
1
.28
1
(.14) (.14) (.14) (.14)
Static career 2.31* 2.29* 2.30* 2.28*
(.14) (.14) (.14) (.14)
Progressive career 1.09** 1.12** 1.12** 1.11**
(.17) (.18) (.18) (.18)
Co-partisan age .05** .05** .05**
(.01) (.01) (.01)
Co-partisan polity .02 .03 .17
(.02) (.02) (.15)
Co-partisan politician .20 .23
(.24) (.24)
Co-partisan proportion opposition 2.31 2.58
(1.97) (1.99)
(Co-partisan proportion opposition)
2
2.41 2.15
(1.91) (1.92)
Age polity .00*
(.00)
Copartisan age polity 2.00
(.00)
Constant 27.06** 25.60** 25.80** 26.01**
(.55) (.68) (.81) (.82)
Justices 669 669 669 669
N6,678 6,678 6,678 6,678
Note.—Dependent variable is voluntary exit. Entries are logistic coefficients. Models include frailties by justice.
Standard errors are in parentheses.
1
p<.10.
*p<.05.
** p<.01.
table 5) in figure 2. All panels reflect predicted probabilities (and 95% confidence inter-
vals) along the vertical axis, using the observed-value approach (Hanmer and Kalkan
2013). That is, we fix the levels of the selected variables (and their interactions) for all cases
in the sample, and estimate predicted probabilities based on the parameter estimates and
the observed values for the remaining predictors. The expected values are then averaged
across the sample to produce a point estimate for this counterfactual population.
Evidence on hypothesis 1. Figure 2.1 plots the probability of retirement for judges of dif-
ferent ages who are co-partisans with the president or members of an opposition party.
Not surprisingly, the propensity to retire increases considerably for judges of age 65
and older. In line with the first hypothesis, older judges appear more likely to retire when
the president is a co-partisan. However, the difference for the two partisan groups is not
statistically significant in any simulation, reinforcing the findings presented in table 4.
Evidence in favor of hypothesis 1, the core empirical implication derived from the theory,
is revealing but weak.
16
Evidence on hypothesis 2.Infigure 2.2, the conditional effects of co-partisanship accord-
ing to age areestimated for a hypothetical sample of judges operating under dictatorship(a
Polity score of 29), while in figure 2.3 the same effects are estimated under democracy (a
Polity score of 19). This setup allows us to compare the probability of exit for judges of
retirement age with different political orientations under different regimes. The overall
pattern for older judges is similar in democracies and dictatorships: both figures indicate
a relative increase in the retirement of co-partisans vis-à-visopponents at an older age, but
with no statistical differences across groups. To the extent that any differences are observ-
able for older judges across regimes, they challenge theoretical expectations. Although in-
significant in both cases, the gap between co-partisan and opposition judges appears to be
smaller in democracies, where electoral competition should create greater incentives for
strategic behavior.
Evidence on hypothesis 3. Figures 2.4 and 2.5 allow for a test of the third hypothesis:
figure 2.4 plots the effects of age and partisan alignments for judges without polit-
ical experience, and figure 2.5 plots the same effects for judges with a prior political
career. Partisan convergence between judges and the president should expand in-
centives for retirement when a prior political career makes judges sensitive to party
needs. The two panels, however, display equivalent patterns for older judges, failing
to support hypothesis 3.
Evidence on hypothesis 4. Figure 2.6 compares the probability of voluntary retirement
for co-partisan and opposition judges in courts of differentcompositions. The simulation
holds the age of justices constant at 65 years—using observed ages generates equivalent
16. According to model 5.4 of table 5, the marginal effect of co-partisanship for a justice of age 80,
operating in a democracy (Polity 510), with prior political experience, and who sits in an evenly di-
vided court, would be positive (an odds ratio of 1.58) but insignificant ( p5:25).
Strategic Retirement in Comparative Perspective |189
Figure 2. Expected probability of exit for opposition and co-partisan justices (model 5.4 of table 5)
results. Irrespective of age, there is no evidence that judges aligned with the president
become more likely to retire when the court is divided or that judges in the opposition
are reluctant to retire when they have a pivotal role. Judges of all persuasions are some-
what less likely to leave a divided court, but differences are statistically insignificant.
Together, the results presented in table 4 and figure 2 indicate that there is little em-
pirical evidence in favor of the main hypothesis derived from strategic retirement theory
(hypothesis 1) and any of the ancillary empirical implications reflected in hypotheses 2–4.
Induced Retirements
Surprisingly, differences between co-partisan and opposition judges are pronounced for
younger judges in figure 2.2. Young judges aligned with the president are less likely to
resign than judges in the opposition. This fact suggests that, in weakly institutionalized
legal systems, adversarial judges are “induced”by the executive into early retirement (Cas-
tagnola 2012). Even though our estimator treats involuntary exits as censored observations,
some exits that appear to be “voluntary”in the historical record may in fact represent am-
biguous choices. Strong-handed governments may not invest much effort to induce resig-
nations among older judges precisely because their retirement is expected inthe short run.
Presidents are more capable of inducing such resignations in authoritarian contexts.
Figures 2.2 and 2.3 illustrate this fact. The pattern for younger judges varies considerably
across regimes: co-partisan judges are significantly less likely to resign in authoritarian en-
vironments but not in democratic regimes, where trajectories for the two partisan groups
are virtually indistinguishable.
Alternative Explanations
Some control variables display effects in line with prior findings in the literature: career
judges are likely to stay inoffice for longer and judges who pursue progressive political ca-
reers retire from the court earlier. The effect of progressive ambition is consistent across
countries and model specifications. In line with this finding, the literature on judicial pol-
itics has shown that court decisions are influenced by judges’career goals under different
institutional environments (Hall 2001; Pérez-Liñán, Ames, and Seligson 2006; Brace and
Boyea 2008; Boyea 2010; Grijalva 2010).
DISCUSSION AND CONCLUSIONS
The literature on judicial politics has produced controversialresults about strategic retire-
ments. Assuming that the theory is correct, such inconclusive findings could result from
an imprecise conceptualization of the theory—leading to an imperfect specification of
empirical models—or from the sample size imposed by the number of justices in the US
Supreme Court. Our analysis shows that those problems are unlikely to explain the in-
consistent findings of previous studies. Even if some individual justices retire for political
reasons, the theory of strategic retirements does not seem to capture a general pattern of
behavior in the United States or elsewhere.
Strategic Retirement in Comparative Perspective |191
This article has addressed those problems systematically.We developed a formal model
of retirement choices and tested its empirical implications with evidence from the Su-
preme Court in the United States and five other presidential countries between 1900
and 2004. Our empirical analysis finds limited evidence in favor of those hypotheses, sug-
gesting that the empirical foundations of strategic retirement are indeed weak.
The comparative strategy followed a most-different systems design, documenting the
general absence of strategic behavior in different political contexts. In Brazil and Mexico,
like the United States, some justices may retire for strategic reasons, but the statistical ev-
idence is weak. Indications of strategic retirement are even scarcer in countries that en-
dured judicial purges, like Argentina. These results hold under multiple model specifica-
tions, for different historical periods, and for a subsample of democratic cases.
17
Combined
with existing evidence offered by studies of high courts in parliamentary systems, these
findings indicate that Supreme Court retirements are mostly driven by sincere motivations
worldwide.
The results presented in this article suggest three conclusions. First, scholars seeking
to understand judicial retirements should refrain from assuming strategic behavior and
investigate sincere motivations. A rich cross-disciplinary literature provides important in-
sights: to explain retirements, economists have focused on money, psychologists have ex-
plored the role of perceptions and personalities, human resource management scholars
have centered on organizational policies, and physicians have paid attention to health
(Adams and Beehr 2003).
Prior studies have underscored two sincere motivations driving judicial retirements:
wealth and health. Other factors should be taken into account: Johnson and Favreault
(2001) reveal that workers are more likely to retire if spouses have already retired; Henkens
and Tazelaar (1997) find that civil servants in the Netherlands are less likely to retire when
social networks in the workplace are important; Cleveland and Shore (1992) find that
workers who perceive themselves to be more senior than their colleagues report higher
levels of job satisfaction. Several disciplines offer alternative hypotheses that could prove
valuable to understand retirements from the bench.
Second, the role of progressive ambition in all models hints at important parallels with
the study of other democratic institutions. For instance, comparative studies of legisla-
tive politics have accounted for differences in legislative behavior where legislators do
not pursue reelection (e.g., Jones et al. 2002; Guevara Mann 2011).Comparative studies
of judicial politics should similarly analyze career paths for judges operating under differ-
17. We estimated two robustness tests, not reported to save space. First, we replicated the analysis
in table 5 adding Linzer and Staton’s (2015) measure of de facto Judicial Independence, available since
1948. The variable is not statistically significant in any of the models, but other results remain similar
to those in table 5. We also reproduced the analysis for a subsample of democracies (Polity >4). The
findings are generally equivalent to those presented in fig. 2. Only the evidence for induced retire-
ments (fig. 2.2) vanishes in the subsample of retirements under democracy. The replication file is
available in the online edition.
192 | JOURNAL OF LAW AND COURTS | FALL 2017
ent legal systems. Justices with progressive ambitions may rule strategically in order to
secure nomination for coveted positions in Congress or in the executive branch. In con-
trast, justices expecting to return to private practice may rule in line with their personal
interests (Basabe 2011).
Finally, our results indicate that in weakly institutionalized legal systems, young oppo-
sition judges are more likely to resign than judges aligned with the government. This pat-
tern is distinctive of authoritarian regimes, suggesting that strong executives induce “vol-
untary”retirements among independent judges (Castagnola 2012). A growing literature
has emphasized the role of institutions in authoritarian regimes (Pepinsky 2014). Our
findings reinforce this perspective, showing that courts remain an important locus of po-
litical contention even in less democratic systems (Ginsburg and Moustafa 2008; Solo-
mon 2010; Chua and Haynie 2016).
APPENDIX
Historical Sources, by Country
ARGENTINA
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en Argentina. Buenos Aires: Temas Grupo Editorial.
Kunz, Ana E. 1989. Los magistrados de la Corte Suprema de Justicia de la Nación, 1930–1983.
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Tanzi, Héctor José. 2006. “Historia ideológica de la Corte Suprema de Justicia de la Nación
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BRAZIL
Rodrigues, Lêda Boechat. 1991a. História do Supremo Tribunal Federal, Vol. II: 1899–1910, Defesa
do Federalismo. Rio de Janeiro: Civilização Brasileira.
Rodrigues, Lêda Boechat. 1991b. História do Supremo Tribunal Federal, Vol. III: 1910–1926,
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CHILE
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MEXICO
Camp, Roderic A. 1991. Mexican Political Biographies, 1884–1935. Austin: University of Texas
Press.
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Corte Suprema de Justicia de la Nación. 2001. Suprema Corte de Justicia de la Nación (Ministros
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PANA MA
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