Leaving Judicial Retirement to Chance

I have a piece up at Public Discourse on judicial retirements and how a decision not to do so now by conservative judges is entrusting the future of their seats to chance. Insofar as they care about judicial conservatism, this is an untenable position. It's gambling with the future of the republic.

As I explain:

Staying on the bench invites Fortune to spin. Whether the justification is “I’m still in good health” or “my dad lived to be 95” or “J. D. Vance will win in 2028,” it is a choice based on some perceived probability. “It will probably turn out fine because I assess that the odds are in my favor.” Perhaps. It nevertheless depends on at least two factors beyond the control of any conservative judge: his or her continued health, and the electoral fortunes of the Republican Party.

Once a judge is relying on the odds, he has relinquished his agency over the decision. It is no longer a function of rational deliberation but a function of Fortune’s wheel, whose spin the judge has no choice but to accept. Surely, Ginsburg regretted the weight of all democracy pressing down on her daily pushup regimen — you could hear it in her supposed final words imploring the political branches to wait until someone other than Trump could replace her. But she chose to live under Fortune’s yoke, as will any conservatives who don’t retire this year.

You can read the whole piece here.