Justice Stephen Breyer Should Retire Right Now

Or so says Paul Campos in an opinion piece for the NY Times today (possibly paywalled).

And I have to say, he makes a pretty compelling argument, at least from a political perspective.

Consider that because of the extremely thin nature of their Democratic Senate control, the shift of a single seat from the Democrats to the Republicans or even one vacancy in the 50 seats now controlled by the Democratic caucus would probably result in the swift reinstallation of Mitch McConnell as the majority leader.

What are the odds that something like this — a senator’s death, disabling health crisis or departure from office for other reasons — will happen sometime in this Congress’s remaining 22 months?

Alarmingly for Democrats, if history is any guide, the odds are quite high. Since the end of World War II, 27 of the 38 Congresses have featured a change in the party composition of the Senate during a session.


At the moment, no fewer than six Democratic senators over the age of 70 represent states where a Republican governor would be free to replace them with a Republican, should a vacancy occur.

Five other Democratic senators represent states for which a vacancy would go unfilled for months, until a special election to fill the seat was held — which would hand the G.O.P. control of the Senate at least until that election and likely for the rest of the current Congress if a Republican wins that contest.

Of course, Breyer owes nothing to Democrats or liberals in general. He may want to stay on for personal reasons and no one can force him to resign. But if he has any concerns about the current conservative tilt of the court, then he might want to to think about it.

So the thinking is that he’s old, and a combination of two things could happen:

  1. Senate composition changes and Democrats no longer control it.
  2. Breyer could die after that happens.

The thought is that he should pre-emptively retire so that someone younger can get appointed who isn’t likely to die in the near future?

Seems a bit harsh…

Tell that to the ghost of Ruth Bader Ginsburg.

I’m with @bump. I see the benefit in a justice considering this sort of thing based on the current party in power, but I’m not going to hold it against them if they choose to hang on and happen to die at an inappropriate time. I think no less of RBG today (I remain infatuated) even though some wish she had retired sooner.

He may be waiting for the current SCOTUS term to end. IIRC that’s usually around the end of June or beginning of July. If he hasn’t made any announcement by the begging of the next term, that indicates to me he intends to hang on until he dies.

Makes me wonder why Thomas refused to retire last year, too.

Can a justice retire upon appointment of their replacement? With the fragile control of the Senate, the worst would be if he retires and then the Democrats lose a seat somehow before his replacement is appointed.

In my dreams, I wish RBG had retired at the beginning of Obama’s first term. The truth is, I had a sinking feeling every time I heard something about her health, or saw how frail she looked, and wished she’d retire on the spot.

Yes. Justice Breyer should retire. I wish it were not true, but if he died toward the end of Biden’s term, Republican senators would try to block Biden’s nominee, and would succeed, depending on how many people had been elected to the senate mid-term.

The the dangling justice seat would become a rallying cry for Republicans to get out and vote.

I don’t blame RBG because at the point she had the ability to resign and let a liberal justice replace her, it wasn’t clear how bad things would get.

Breyer in this present moment should absolutely retire. The SCOTUS is a thoroughly political institution and liberals can’t afford to just give up another seat to conservatives.

I beg to differ, it was quite clear indeed. People were imploring her in 2013 to step down, knowing that midterms typically go against the ruling party. She refused and the Republicans, predictably, took the Senate in 2014. It’s hard to hold on to the White House for longer than eight years in a row, too, and she surely knew that too - and Trump won.

Justice Breyer could turn this around: “I think Dems should pack the Court right now.”

Should isn’t the same thing as can. In order to do so they would need at least 60 Democratic senators. Most likely the more moderate Democrats would still be opposed, and it’s probable that it would take something like 2/3 of the senate to successfully pack the court. My guess is the odds of Democrats ever getting 2/3 of the senate are pretty close to zero for the remaining lifetime of the United States.

I think if the Dems ever decided they were actually going to pack the court it’d be a sign that they would be willing to go much further than nuking the filibuster.

Right. My point was that if they’re going to go that far, they’re going to need a solid Democratic supermajority. Democrats aren’t going to successfully pack the courts by convincing the Joe Manchins and Kyrsten Sinemas of a 51/49 or 52/48 senate to go along with it. They would need to have room for error and allow for a good 5 or more Democratic senators that don’t want to go along with the plan.

Oh yeah, I agree with a very tiny majority it’s just not going to happen. But the threshold is 50 plus the number of moderates who don’t have the stomach for it, not 60+.

I do agree that it isn’t going to happen any time soon in any case. Even most mainstream democrats (i.e. to the left of Manchin but to the right of Warren) aren’t going to sign up for it unless there was a massive public outcry over a court case, and given the makeup of the country and how the Senate is naturally tilted right I don’t even know what that could be.

This happened in 2005. When John Roberts was first appointed, it was to an Associate Justice position, that of Sandra Day O’Connor. O’Connor retired upon confirmation (not just appointment) of her replacement. Then Rhenquist died and Bush withdrew Robert’s appointment to Associate Justice and appointed Roberts to Chief Justice, O’Connor stayed in office, since her replacement had not been confirmed yet.

Yes exactly. Breyer needs to retire before the 2022 elections.

There’s actually pretty bipartisan recognition of the need to expand the lower courts. Congress hasn’t expanded the courts of appeal since 1990 or added any district court seats since 2003. Even Republicans have constituents and donors who need to make use of the federal court system, and the size of federal dockets means that people have to wait years to have their cases resolved.

So while a bill to create additional district and appellate judgeships would likely have strong support in Congress, the issue – of course – is filling those seats. Republicans are balking at allowing Biden to fill a bunch of newly created seats. And they’ve got a particular hardon for the Ninth Circuit, which they’ve insisted should be broken up in any court expansion so that Idahoans and Alaskans won’t be subject to the patchouli-scented rulings of a bunch of dope smoking Haight-Ashbury-based judges.

I agree. Yes in 20/20 hindsight (or perhaps 20/16 would be more apropos) she should have resigned earlier, but back when it could have mattered, it was assumed that democratic norms were still in place, and there was no reason to do so.

I just blame her for being unwilling to voluntarily submit to carbonite freezing back in 2018.