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The job of a Supreme Court justice

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Gregg Herman is a family law attorney with Loeb & Herman in Milwaukee. He is board certified in Family Law Trial Advocacy by the NBTA, a fellow of the American Academy of Matrimonial Lawyers and is a former chairman of the Wisconsin Bar Association and ABA Family Law Sections. In addition to writing for the Wisconsin Law Journal on family law issues, he operates Wisconsin Family Law Case Finder, a legal research site for family law practitioners. He welcomes comments at gherman@loebherman.com.

Maybe it’s because I seem to be asked more and more frequently when I plan to retire (Answer: not for a while!)

But the speculation about the plans of Justice Stephen Breyer, age 82, brings up an interesting question: Why do U.S. Supreme Court justices serve until their dotage? According to Forbes, the average age a justice leaves the Court — either by death or retirement—was around 73 years old in the 1950s. Today, it’s about 83 years old. Justice Ruth Bader Ginsburg was 87 years old when she died, figuratively with her robes on, last fall.

There are, in my never-to-be-humble opinion, two reasons. The first is one lawyers never say publicly: It’s really not that difficult a job. First, each justice has four law clerks.

And not just any recent law school graduate – being a law clerk to a Supreme Court justice is so prestigious that justices get the pick of the litter from the top law schools. Second, the average number of cases decided by the U.S. Supreme Court from 2007-2019 was 76 cases. Divided by nine justices, each justice wrote just over eight decisions a year.

True, there were also concurring and dissenting opinions, but even so, that amounts to a light case load. Yes, there are also writs and motions to rule on, but those are not exactly heavy lifting. And let’s not forget that the court is not even in session for three months each year. Trial courts and most state appellate courts are in session 12 months a year despite having a much higher case load and not having the substantial number of clerks employed by each justice.

As a result, it’s difficult to believe a Supreme Court Justice is in any danger of dying from stress or overwork. Or, more precisely, it enables justices to work into old age.

The second reason is the incredible prestige inherent with the position. About 15 years ago, when I was an officer of the ABA Family Law Section, Justice Ginsburg accepted an honorary award from the section during a meeting in Washington.

She walked into the luncheon, dwarfed by huge security guards, to a standing ovation. Following a few limp handshakes and a couple of very flattering introductions, she gave an innocuous ten minute speech and left, again to a standing ovation. I’m sure that such opportunities are common and that the ego trip which results help to make the position an enviable job.

Oh, and finally, the salary is not bad either. Associate justices are paid $265,600 a year. Please don’t tell me that they could make more at a law firm position. That may be true, but I’m guessing that if the work load were taken into account (see above), the hourly rate for justices is rather impressive.

If the only argument for early retirement is a political one, so that a certain president gets to select the successor, it’s easy to see why justices rarely retire early. Short work year plus limited cases plus highly talented support staff plus incredible prestige plus high salary equals quite a good job – and one which is difficult to quit.

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