Justice Stephen Breyer Should Retire Right Now (Is Now Retiring)

Politics & Elections
41

I hope thats accurate. I think Biden has only appointed 2 appellate court justices so far, but both Manchin and Sinema voted for both so thats a good sign. I think democrats picked up 2-4 GOP votes on those appointments too, but a SC justice is far more noticeable and it’ll probably be along party lines.

FWIW, the real power is in the appellate court supposedly, so McConnell prioritized that. Appellate courts can overturn district courts, but most appellate decisions are not taken up by the supreme court and are allowed to stand.

42

I agree that Breyer needs to get out while the gettin’s good.

But re RBG: when exactly should she have retired? It’s obviously impossible to know for sure, but it’s hard for me not to see Mitch blocking Obama’s nominee to replace her in 2015-2016. How about 2013-2014, or 2011-2012? What would Mitch have done then?

43

But a conservative victory for how long? You’re ignoring the tendency of justices to drift leftward over time.

44

Some do, some don’t. Justices nominated by Democratic presidents tend to drift further left over their careers. Justices nominated by Republican presidents have no such pattern. Sure, Roberts drifted left, but Thomas and Alito both moved to the right. Scalia moved to hard to the right and then back left, but ended up more right at his death than when first put on the bench. Kennedy can’t seem to figure out which direction to move from year to year. Gorsuch, Kavanaugh and Coney Barrett are too new to call.

Martin-Quinn scores.

45

Ginsburg had her 80th birthday on March 15, 2013. At that point, she had already had cancer…twice. Of course, it would be unfair to expect RBG to have somehow foreseen the Trump Presidency—pretty much nobody saw that coming—but Bill Clinton, a two-term Democratic POTUS, was succeeded by George W. Bush, a two-term Republican President, who was succeeded by Barack Obama, a (as was known by RBG’s 80th birthday) two-term Democratic President. At that point, the odds were good that if Ginsburg lives past January 20, 2017, she’s going to have to make it at least to January 21, 2021 (which of course she did not do) in order not to be replaced with a Republican nominee, and from a 2013 POV, it would seem a prudent person might expect that if she outlives the Obama Administration, she might well have to make it all the way to January of 2025 to avoid having her successor be appointed by President Jeb Bush or President Rubio or whatever. (I am assuming here that even before Trump, and before the nomination of Merrick Garland, Ginsburg would have preferred to have her successor be nominated by a Democrat instead of a Republican.)

Retiring at the age of 80, after 20 years on the Supreme Court, is not exactly a career cut short. (Announce on or around her birthday, and actually step down on or around her 20th anniversary on the court, which was August 10, 2013.) I think it would have been a logical and prudent thing for her to do. (I admittedly am taking a somewhat partisan POV of what is and is not “prudent”, and not pretending that justices of the Supreme Court are all completely non-partisan and above such petty things as politics.) Realistically, Obama would have found a moderately left-of-center woman jurist to replace RBG, so the court likely would have moved somewhat to the “right”—but in 2013 the reasonable alternatives were, the court moves slightly to the right with an Obama nominee, or the court moves substantially to the right with a nomination by the very-likely-Republican 45th POTUS. If RBG had done the prudent thing—and I think it was foreseeably prudent even in 2013—the court would be substantially less far to the right than it is now (even if we assume that Scalia dies when he in fact did, and everything still plays out there as it did in real life).

I also doubt if even Mitch McConnell would have tried to block an Obama nomination in 2013, with Obama fresh off of rebutting all the Republican chest-thumping about making him a one-term President, along with the fact that an Obama replacement of RBG would be a “hold” not a “gain” for the Democrats. I am NOT excusing the appalling violation of the norms of the Republic displayed by McConnell and his caucus in the Garland nomination, but I do think it was the prospect of Antonin Scalia being replaced by a Democratic nominee, even by a moderate left-of-center candidate, was what drove the Republicans to do what they did. Even a moderately left-of-center justice replacing Scalia, of all people, means a sharp move to the left. Of course, now that it’s been done, the genie is out of the bottle, and who knows how the nomination process will play out from here on—ruthless obstructionism seems likely to be the norm from now until the Republicans are finally punished for what they’ve become and/or Hell freezes over. The nomination process—and the court itself—may well be permanently broken now.

All of which is a kind of long-winded way of saying that yes, of course Breyer should retire, NOW!

46

Democrats had the Senate from 2011-2014, and they eventually (after dithering too long IMO) proved willing to alter the filibuster to get judges through. That change excepted Supreme Court nominations, but I don’t think anyone saw that as some expression of fundamental principles, just an expectation that the next such nomination might come from a Republican president and they’d want to keep their options open. (Republicans had already expressed a willingness to end the filibuster on all nominations in 2005, and indeed they got rid of that last remnant in 2017 to get Neil Gorsuch on the court.)

47

Harry Reid invoked the “nuclear option” in November of 2013 to eliminate the filibuster for all executive branch nominees and non-Supreme Court judges. I agree that the move took too long, and worse they didn’t have a plan in place to use this power to fill all judicial vacancies. One year later, when Republicans foreseeably took back the chamber, they were able to stonewall several Obama nominees to circuit courts that has been left pending.

48

I read a law review article a few years back, arguing that the GOP-appointed justices least likely to drift left were those who’d served in the Executive Branch. The author made a pretty persuasive case. FWIW, Gorsuch worked in the DOJ, Kavanaugh was a White House official and also worked for Independent Counsel Ken Starr, while Barrett never worked in the Executive Branch.

49

To my thinking, the main cleavage among conservative Supreme Court justices is between those who are focused on achieving conservative policy outcomes, and those who are focused on a conservative judicial philosophy. 90% of the time those two categories are going to overlap. But it can lead to (and explain) some counterintuitive decisions.

Of the current court, Roberts is the leading example of the former. His decisions are carefully tailored to advance Republican policy interests. Even those cases where he seems like he’s bucking Republican positions, like refusing to throw out the entire ACA, are rooted in his recognition that throwing the insurance market into turmoil would likely lead to more government intervention in health care not less.

Clearly Gorsuch is the strongest adherent of following a conservative judicial philosophy on the court. And it’s led him to some surprising decisions siding with the court’s liberals like Bostock v. Clayton County and McGirt v. Oklahoma.

I think that my point is that either policy or philosophy considerations can make a conservative justice seem “liberal” on a given case. But I wouldn’t read too much into this as Roberts or Gorsuch “drifting left.”

50

First of all, it needs to be remembered and acknowledged that the reasons that Republicans put forward for doing X or Y aren’t actually reasons, they’re rationalizations. If circumstances were different, they’d put forth different rationalizations. QED. Now, it also needs to be remembered that the Democratic majority in the Senate might not even last till the mid-terms hanging, as it does on the continued good health of some really, really old people. Could Justice Breyer, or any other Justice or judge, resign "contingent on the confirmation of my successor "? That might short-circuit a lot of nonsense.

51

Justice O’Connor retired effective when her successor was confirmed. If that is what you mean, then there is precedent for it.

If you are asking if he can say, “I will retire contingent upon Merrick Garland replacing me” or “I will retire contingent upon the Democrats retaining control of the Senate” there is no precedent for that.

I’m not sure how a contingent retirement (first example) would “short-circuit” any nonsense.

52

I don’t know exactly how a Supreme Court justice tenders his resignation, but assuming it’s based off of paperwork (as most things are), couldn’t he just announce in public “I will only retire if (X, Y and Z happen)” while holding on to the actual paperwork and refusing to submit it until XYZ does happen?

Or is the president banned by law from nominating a successor until the paperwork has been turned in?

53

I agree completely, but of course this would require amending the Constitution. Whereas right-sizing SCOTUS would not.

Note that a change in the number of Justices has happened several times in US history, and there have been no “radical, extremist” results.

It’s really all in how this is discussed. Labelling a change in the number of Justices as “radical” is a self-fulfilling prophecy, and an unnecessary own-goal by Democrats.

My ideal would be an Amendment that limits both the term-length and age-of-serving of Justices, but the odds of getting such an Amendment are pretty close to zero. (The Amendment process would certainly be highjacked by well-funded right-wingers and we’d end up with Amendments that would quite radically restrict all sorts of rights to the Designated Privileged.)

So I’d like to see Democrats do a lot more talking about the various numbers of Justices we’ve had over the years, and how this is a NON-radical change.

\

https://www.supremecourt.gov/about/institution.aspx

54

A retiring justice submits his resignation to the Chief Justice, who is the chief administrative officer for the judicial branch. A justice can certainly say that they won’t resign unless A, B, or C happens, but if a justice tried to submit a resignation with a bunch of goofy conditions the CJ could simply reject it. The President cannot nominate someone to the seat absent a resignation in the CJ’s hands.

As mentioned, it’s not uncommon for a justice to retire (which usually means take senior status) “upon the confirmation of a successor.” Should a retiring justice attempt to rescind their resignation prior to confirmation of the successor, it would be up to the CJ to decide whether he or she would allow it. I cannot imagine that a CJ would do so.

55

The senior status thing may not apply to the Supreme Court. It certainly hasn’t been done, at least in modern times.

“Senior status,” for a federal district court judge or a circuit court judge, doesn’t necessarily mean that the judge is retired, in the sense of not working anymore, it means that he or she has a reduced caseload. He/she also gets fewer clerks and a smaller office staff. And, depending on the district, another judge may be appointed.

Maybe there’s an end run around court-packing there. Breyer takes senior status, reduces his workload, and another full-time judge gets appointed.

Never happen, though.

56

Retired justices routinely take senior status. Off the top of my head, both O’Connor and Souter heard cases on appellate courts after they had left the SC.

57

Right. But they weren’t hearing Supreme Court cases after Alito and Sotomayor were appointed.

It’s not important, just an idle thought that popped into my head.

58

I think we’re just talking around each other a bit. Justices have been eligible to take senior status since 1937 (which is often what they do when they “retire”). A Supreme Court justice on senior status is eligible to serve on any inferior court, but not (as you note) on the SC itself.

59

I wonder what makes people like Ginsburg, Thomas - and perhaps Breyer - so utterly obstinate in refusal to retire. Do they genuinely believe that their legal opinions are so gold-plated that even the most liberal (or conservative) successor couldn’t do them justice?

60

A few things. First, federal judges (district court and circuit court judges, too, not just Supreme Court justices) are quite specifically appointed for life (". . . shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.")

There’s a good reason for this, and it’s to ensure an independent judiciary. There’s not much anyone can do to lean on a federal judge. It’s not like state court judges, who have to run for re-election, and who may be at the mercy of the party bosses who control the ballot lines (as is the case here where I live, and the boss of the Kings County Democratic organization is the kingmaker when it comes to judgeships). It’s pretty effective. And nobody can reduce their pay. It’s the best pension plan in the world – they get paid their fully salary until they die, even long after they’re retired. If they choose to retire.

I suspect that SC justices pride themselves on not paying any attention to prevailing political winds, and that’s probably as true of Thomas as it is of Breyer. And sometimes that works against what we’d like, I guess, but on the whole, in the long run, I don’t think it’s such a terrible thing.

And between being invulnerable to pressure, and considering themselves above politics (rightly or wrongly), they’re going to stick around as long as they’re able. Hardly surprising.

And maybe it’s arguable that they should be required to step down at some point. I’d rather see that happen by statute applying to all judges than see a judge choose to retire for political reasons. If Justice Breyer were to retire to ensure that a Democratic president would name his replacement, or if Justice Ginsburg had, it worries me a bit that a precedent would be set that won’t always work in our favor.

I’m not a lawyer – would an age-limit statute require a constitutional amendment? I have no idea, but if so, it’s never going to happen. Certainly not in our lifetimes.

Also, not that I wish physical harm to Mitch McConnell, but perhaps a real road-to-Damascus experience, and subsequent vocation to a monastery? Something along those lines.