Monday, Feb. 15, 2016 | 2 a.m.
A black-draped chair on the Supreme Court bench once signaled that a justice had died, but those somber memorials have been increasingly uncommon at the court as its members have chosen to retire rather than hold their office until death.
Justice Antonin Scalia's death Saturday at the age of 79 marks only the second time in more than 60 years that an active justice has died.
"Dying this suddenly on the bench is the exception, not the rule, for the justices in the twentieth century," said Washington and Lee University law professor Todd C. Peppers, who has written about the fact that chief justices seem more likely than other justices to die while in office.
Chief Justice William Rehnquist, who had thyroid cancer, died in office at age 80 in 2005. Before that, the last justice to die in office was Justice Robert H. Jackson, who died in 1954 of a heart attack at age 62.
Of the approximately 100 justices who have served on the court and left, a little fewer than half have died while still holding the position. But modern justices are much less likely to die in office. Before 1900 about two thirds of justices died in office, but since that time only about a third of justices have.
One reason why justices, who are appointed for life, may have been more likely to die in office in the court's earlier history was that there were no pensions for federal judges. Because they got nothing if they retired, justices tended to stay, scholars said. That changed in 1869, and retirement provisions have become increasingly generous over the years so now any federal judge who is 65 and has served 15 years on the bench can retire with his or her full salary. After age 65, their combined age and years of service must just equal 80.
But justices don't necessarily retire when they hit that number. Five current justices are over 65 and qualify for full retirement. Three justices are over 70. Justice Stephen Breyer is 77. Justice Anthony Kennedy is 79. And Justice Ruth Bader Ginsburg, who has been asked a lot about retirement in recent years because of her age and two bouts with cancer, is 82.
Artemus Ward, a professor at Northern Illinois University who wrote a book, "Deciding to Leave," about justices quitting the bench, said these days they tend to strategically time their retirements so that their replacement gets picked by a president of the same party that appointed them. Scalia acknowledged wanting to be replaced by a like-minded successor and might have thought about retirement if a Republican were elected in 2016, Ward said. But he said Scalia also might have gambled and waited longer.
All three justices who've retired since Rehnquist's death are still living. Sandra Day O'Connor, who retired in 2006, is now 85. David Souter, who retired in 2009, is 76. And John Paul Stevens, who retired in 2010, is 95 and has said he may have jumped the gun on retirement.
"They expect to live a long time and they see their colleagues doing it," Ward said. "We think, 'Oh, they're old.' But they're thinking, 'I've got another 10 years at least.'"