# Justice Stephen Breyer Should Retire Right Now (Is Now Retiring) **URL:** \ **Category:** Politics & Elections\ **Created:** [March 15, 2021, 8:17pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952 "2021-03-15T20:17:27Z")\ **Posts on this page:** 20\ **Page:** 4
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [July 11, 2021, 4:57am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/61 "2021-07-11T04:57:54Z")
> [@Velocity](#): > > I wonder what makes people like Ginsburg, Thomas - and perhaps Breyer - so utterly obstinate in refusal to retire. Clarence Thomas isn’t really in the same category. He’s a decade younger than Breyer, about the same age as Samuel Alito. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [July 11, 2021, 1:00pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/62 "2021-07-11T13:00:09Z")
> [@Saintly\_Loser](#): > > There’s a good reason for this, and it’s to ensure an independent judiciary. I think the value of a lifetime term in defending an independent judiciary depends on what you mean by “independent judiciary.” Sure, judges are not subject to the political pressures that would come from being elected or having to be reconfirmed. But because appointments are for life (and consequently so rare), particularly Republicans have strongly focused on nominating relatively young, reliably partisan judges. The battle cry of Republicans on judges is, “no more Souters” – i.e. a justice who dares to break with conservative orthodoxy and occupies a seat for decades that they feel should be “theirs.” They’ve set up an entire structure through the Federalist Society to closely vet potential judges to ensure that they only nominate true believers. If a SC nomination were less of a “do-or-die” proposition, there would be less pressure to ensure that the parties seat the most partisan justice possible. A fixed 18-year, nonrenewable term with an opening coming up every two years would have the same insulating benefits of a lifetime appointment, while the regular cadence of openings would reduce some of the political pressures that turn every nomination into a frenzy. ---
**Author:** ![Saintly\_Loser](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saintly_loser/32/4045_2.png) [@Saintly\_Loser](https://boards.straightdope.com/u/Saintly_Loser)\ **Post date:** [July 11, 2021, 1:57pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/63 "2021-07-11T13:57:12Z")
> [@flurb](#): > > But because appointments are for life (and consequently so rare), particularly Republicans have strongly focused on nominating relatively young, reliably partisan judges. The battle cry of Republicans on judges is, “no more Souters” – i.e. a justice who dares to break with conservative orthodoxy and occupies a seat for decades that they feel should be “theirs.” This is true. Although it could be just as true of Democrats. > [@flurb](#): > > They’ve set up an entire structure through the Federalist Society to closely vet potential judges to ensure that they only nominate true believers. This is a different issue. The Republican Party seems to have outsourced appointments to the entire federal judiciary, not just the Supreme Court, to the Federalist Society, which starts grooming appointees as early as law school. And they’re very good at it. In fact, there’s the heart of the matter. The Republican Party is just better at this stuff than the Democratic Party is. I don’t know how to fix this. The Democratic Party is a disorganized mess. It’s like Will Rogers famously said – “I don’t belong to an organized political party. I’m a Democrat.” But there’s no FDR on the scene to save us (and hopefully no great depression or world war). > [@flurb](#): > > A fixed 18-year, nonrenewable term with an opening coming up every two years would have the same insulating benefits of a lifetime appointment, while the regular cadence of openings would reduce some of the political pressures that turn every nomination into a frenzy. Would this require a constitutional amendment? If so, I think there’s zero chance of it ever happening. ---
**Author:** ![Lord\_Feldon](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lord_feldon/32/341_2.png) [@Lord\_Feldon](https://boards.straightdope.com/u/Lord_Feldon)\ **Post date:** [July 11, 2021, 2:10pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/64 "2021-07-11T14:10:25Z")
> [@Saintly\_Loser](#): > > Would this require a constitutional amendment? If so, I think there’s zero chance of it ever happening. There are proposals floating around that would (try to) get around the need for a constitutional amendment by merging the circuit courts of appeals into the Supreme Court, which would be a single Supreme Court but with circuit divisions and a final appeals division. Justices could thus (supposedly) serve fixed terms in the final appeals division _within_ the court while retaining a lifetime appointment to the court as a whole; at the end of their terms on the final appeals division, they would simply choose a circuit and go do stuff there (or retire). This could also make the court more robust to recusal issues or a continuity-of-government emergency (since a circuit justice could be temporarily elevated). ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [July 11, 2021, 4:33pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/65 "2021-07-11T16:33:45Z")
> [@Saintly\_Loser](#): > > Would this require a constitutional amendment? If so, I think there’s zero chance of it ever happening. The Constitution doesn’t explicitly say that Justices serve on the Supreme Court for life – as you noted, the language is that, “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” There’s an argument to be made that requiring Supreme Court justices to take senior status after a certain amount of time or at a certain age would not be removing them from their “offices” since they would continue to serve as federal judges. ---
**Author:** ![Bootb](https://avatars.discourse-cdn.com/v4/letter/b/e19b73/32.png) [@Bootb](https://boards.straightdope.com/u/Bootb)\ **Post date:** [July 11, 2021, 11:22pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/66 "2021-07-11T23:22:50Z")
> [@Velocity](#): > > I wonder what makes people like Ginsburg, Thomas - and perhaps Breyer - so utterly obstinate in refusal to retire. This is not exactly a new issue. [https://law.marquette.edu/facultyblog/2012/03/supreme-court-justices-today-are-unlikely-to-die-with-their-boots-on/](https://law.marquette.edu/facultyblog/2012/03/supreme-court-justices-today-are-unlikely-to-die-with-their-boots-on/) ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 13, 2021, 2:34pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/67 "2021-07-13T14:34:54Z")
> [@flurb](#): > > A retiring justice submits his resignation to the Chief Justice… Cite, please? I’ve never seen a SCOTUS resignation letter written to the Chief Justice, but have often seen them written directly to the President. [![](https://en.wikipedia.org/wiki/Sandra_Day_O%27Connor#/media/File:Oconnor070105_0001.jpg) ](https://en.wikipedia.org/wiki/Sandra_Day_O%27Connor#/media/File:Oconnor070105_0001.jpg) > **[Justice John Paul Stevens resignation letter](https://issuu.com/bhuddle/docs/stevens-resignation)** > > Read Justice John Paul Stevens resignation letter by Brian on Issuu and browse thousands of other publications on our platform. Start here! > **[Justice David Souter Retirement Letter | PDF](https://www.scribd.com/doc/14854686/Justice-David-Souter-Retirement-Letter)** > > Dear Mr. President: > > When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l), having attained the age and met the service requirements... [http://stump.marypat.org/article/1024/scotus-doings-public-employee-union-dues-and-justice-kennedy-retiring](http://stump.marypat.org/article/1024/scotus-doings-public-employee-union-dues-and-justice-kennedy-retiring) ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [July 13, 2021, 4:27pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/68 "2021-07-13T16:27:51Z")
Huh, this is proving devilishly difficult for me to track down, and I’m certainly willing to be corrected. As the administrator for the federal judiciary, I’m sure that the CJ has to be informed in some manner if only for pension purposes. ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 15, 2021, 3:27pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/69 "2021-07-15T15:27:35Z")
Justice Breyer obviously didn’t see the thread title: > **[Exclusive: Stephen Breyer says he hasn't decided his retirement plans and is...](https://www.cnn.com/2021/07/15/politics/stephen-breyer-retirement-plans/index.html)** > > Justice Stephen Breyer has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench, he told CNN in an exclusive interview -- his first public comments amid the incessant speculation of a... ---
**Author:** ![DWMarch](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dwmarch/32/1010_2.png) [@DWMarch](https://boards.straightdope.com/u/DWMarch)\ **Post date:** [July 16, 2021, 1:52am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/70 "2021-07-16T01:52:56Z")
If Breyer did retire right now would the Republicans actually allow Biden to nominate a replacement? Or is it already too close to the next election? ---
**Author:** ![DeadTreasSecretaries](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/deadtreassecretaries/32/4817_2.png) [@DeadTreasSecretaries](https://boards.straightdope.com/u/DeadTreasSecretaries)\ **Post date:** [July 16, 2021, 2:11am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/71 "2021-07-16T02:11:48Z")
The Dems don’t need permission from them. ---
**Author:** ![dtilque](https://avatars.discourse-cdn.com/v4/letter/d/d6d6ee/32.png) [@dtilque](https://boards.straightdope.com/u/dtilque)\ **Post date:** [July 16, 2021, 2:48am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/72 "2021-07-16T02:48:32Z")
> [@DWMarch](#): > > If Breyer did retire right now would the Republicans actually allow Biden to nominate a replacement? Or is it already too close to the next election? One of the President’s duties, as provided in the Constitution, is to nominate judges to the Supreme Court. So the Republicans can’t do anything to prevent that. Furthermore, there’s already an exception to the Senate filibuster rule for approving such nominations, so a bare majority is all that’s needed to do that. Since the Democrats have that majority, as @DeadTreasSecretaries says, they don’t need the Republicans’ permission. There’s nothing in the Constitution or any law about how close to the next election it is that has anything to do with approving nominations. That was a very lame excuse Mitch McConnell gave for not bringing the nomination of Merrick Garland to a floor vote. And just to prove how lame that excuse was, he rammed through the most recent nomination in the last month before the 2020 election. ---
**Author:** ![ThelmaLou](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thelmalou/32/390_2.png) [@ThelmaLou](https://boards.straightdope.com/u/ThelmaLou)\ **Post date:** [July 16, 2021, 3:37am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/73 "2021-07-16T03:37:58Z")
Ok, let’s get down and dirty: is there ANY way Mitch could reach into his bag of evil tricks and pull out some arcane, forgotten technicality that would prevent the Dems from filling a Supreme Court vacancy, should one occur? Keeping in mind that he has no morals, no scruples, and cares not one bit for tradition or convention. ---
**Author:** ![Saintly\_Loser](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/saintly_loser/32/4045_2.png) [@Saintly\_Loser](https://boards.straightdope.com/u/Saintly_Loser)\ **Post date:** [July 16, 2021, 3:42am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/74 "2021-07-16T03:42:53Z")
Who knows. I certainly don’t. But if there is such a way, McConnell will find it. He, as you say, has no morals or scruples or regard for convention or tradition. But he is not stupid. If there’s a way, he’ll find one. After Elizabeth Warren destroyed Michael Bloomberg’s presidential hopes in about 90 seconds (for which I will forever love her), I thought that if Mike really wanted to do something for his country, he could have dropped about a billion dollars into taking Mitch out. Primary him. Bankroll Republican challengers. Bankroll Democratic opposition. _Any_ Democratic opposition. Mitch McConnell is an evil man who is so astoundingly lacking in the slightest regard for the nation he claims to serve that I can’t even begin to fathom it. ---
**Author:** ![ThelmaLou](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thelmalou/32/390_2.png) [@ThelmaLou](https://boards.straightdope.com/u/ThelmaLou)\ **Post date:** [July 16, 2021, 3:46am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/75 "2021-07-16T03:46:36Z")
> [@Saintly\_Loser](#): > > If there’s a way, he’ll find one.- I have faith in him, the rat-bastard MF. ---
**Author:** ![Cervaise](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cervaise/32/16693_2.png) [@Cervaise](https://boards.straightdope.com/u/Cervaise)\ **Post date:** [July 16, 2021, 9:14am UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/76 "2021-07-16T09:14:02Z")
> [@ThelmaLou](#): > > is there ANY way Mitch could reach into his bag of evil tricks and pull out some arcane, forgotten technicality that would prevent the Dems from filling a Supreme Court vacancy, should one occur? Yes. It’s called “making shit up.” As long as he does it with a straight face, as long as the both-sides media cower before him, and as long as the Dems lack the spine to plant a steel-toed boot directly into his reptilian fuckjunction, he gets away with it. ---
**Author:** ![ThelmaLou](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/thelmalou/32/390_2.png) [@ThelmaLou](https://boards.straightdope.com/u/ThelmaLou)\ **Post date:** [July 16, 2021, 12:10pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/77 "2021-07-16T12:10:21Z")
> [@Cervaise](#): > > …as long as the Dems lack the spine to plant a steel-toed boot directly into his reptilian fuckjunction, he gets away with it. Great metaphor! The picture sends me to my Happy Place. For those of us who are woefully literal-minded, what would this look like **in real-world behavior** from the Dems if it comes to this (which, knowing Mitch, it probably will)? ---
**Author:** ![Elendil\_s\_Heir](https://avatars.discourse-cdn.com/v4/letter/e/7cd45c/32.png) [@Elendil\_s\_Heir](https://boards.straightdope.com/u/Elendil_s_Heir)\ **Post date:** [July 16, 2021, 1:42pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/78 "2021-07-16T13:42:32Z")
> [@Cervaise](#): > > reptilian fuckjunction Band name! ---
**Author:** ![SunUp](https://avatars.discourse-cdn.com/v4/letter/s/ea5d25/32.png) [@SunUp](https://boards.straightdope.com/u/SunUp)\ **Post date:** [July 16, 2021, 4:00pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/79 "2021-07-16T16:00:31Z")
> [@Saintly\_Loser](#): > > if Mike really wanted to do something for his country, he could have dropped about a billion dollars into taking Mitch out. Primary him. Bankroll Republican challengers. Bankroll Democratic opposition. _Any_ Democratic opposition. As much as we like to think about the pernicious effect of money on politics, no amount of money, especially flowing into the state from outside, would have kept Mitch McConnell from reelection last year. Only a nutcase with no political future would run against him in the Republican primary. Several did; none got more than 6.5% of the vote. McConnell won by _76_ points. No one was going to beat him from the right. Amy McGrath’s campaign did not fail for lack of financial resources. She raised _88_ million dollars. That’s more than Moscow Mitch, and plenty to blanket the airwaves, front lawns, street corners, doorknobs, Facebook groups, and newspaper pages of Kentucky. And she lost by 20 points. Any more money spent would have gone into the coffers of radio and TV station owners, newspaper publishers, and Mark Zuckerberg while having no visible effect on the race. Political money and the coverage it buys is just not that persuasive, as Bloomberg (and Jeb Bush on the other side of the aisle) could tell you. ---
**Author:** ![flurb](https://avatars.discourse-cdn.com/v4/letter/f/51bf81/32.png) [@flurb](https://boards.straightdope.com/u/flurb)\ **Post date:** [July 16, 2021, 4:27pm UTC](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952/80 "2021-07-16T16:27:42Z")
Procedurally, there’s no way for McConnell to prevent a Biden nominee from coming to a vote if the Democrats remain unified (this isn’t necessarily true of the nomination were made just a few days before the current session of Congress ends). There really aren’t any forgotten rules in a scroll on a dusty shelf for him to invoke. What Republicans will do is try to make the nominee toxic enough that they can peel off one Democratic vote. I doubt they will succeed, both because Biden’s people will vet the hell out of the nominee and any D who jumps ship will face unprecedented wrath. Joe Manchin can get away with refusing to deep-six the filibuster, but opposing a Biden SC nominee is a whole ‘nother level of party betrayal (and one that he’s given no indication he’d do). [Previous page](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952.md?page=3) [Next page](https://boards.straightdope.com/t/justice-stephen-breyer-should-retire-right-now-is-now-retiring/937952.md?page=5)