Stephen Breyer’s Retirement Timing

Should he be worried about the appearance of partisan gaming?

California-Irvine law professor Richard Hasen thinks Supreme Court Justice Stephen Breyer is playing a dangerous game in worrying about how retiring so close after a party change in the White House will look.

The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls for his retirement from fellow progressives. The reason? Breyer apparently worries that retiring in the face of a public pressure campaign from Democrats will increase polarization and a politicized view of the Supreme Court.

Reading the linked NYT report, Breyer really gives nothing away about his plans for retirement. Rather, he’s making a more abstract argument about judicial legitimacy:

“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.” In the speech, a version of which will be published in September as a book called “The Authority of the Court and the Peril of Politics,” Justice Breyer said that the odor of partisanship damages the judiciary. “If the public sees judges as politicians in robes,” he said, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

Regardless, Hasen is probably right here:

In reality, a Breyer retirement delay could well have the opposite effect. If Breyer delays too long and Democrats lose control of the Senate before a successor is chosen, then Mitch McConnell could have the opportunity to block a Breyer replacement and supercharge the last five years of intense polarization around the court.

It’s not hard to imagine how a Breyer delay increases the politicization of the court. Breyer waits to retire for a couple of more years, or even a few more months. Democrats lose control of the Senate in the 2022 midterm elections, or because an elderly member of their bare Senate majority passes away and gets replaced with a Republican, restoring Mitch McConnell to his perch as Senate majority leader. Breyer dies or becomes ill soon after Republicans retake the Senate and leaves the court. President Joe Biden, fulfilling his campaign pledge to nominate a Black woman to the Supreme Court, chooses a judicial superstar like California Supreme Court Justice Leondra Kruger or (soon-to-be D.C. Circuit Judge) Ketanji Brown Jackson. McConnell shamelessly announces that Republicans will hold no hearings for a Supreme Court justice until after the 2024 presidential elections, much like he ran out the clock on a hearing for Merrick Garland to fill the late Justice Antonin Scalia’s seat. Democrats stage protests about the blockade of the nominee, and the nominee’s face is featured prominently in advertising about the court. A key debate in the 2024 presidential election is about who is going to take the seat on the Supreme Court, with knowledge that not only Breyer’s spot, but also likely the seats of Justices Clarence Thomas and Samuel Alito (two staunch conservatives) could open up with a Republican presidential win in 2024. The court is once again the political football in our national arena.

He plays that scenario out a bit longer but you get the idea. And, again, I think Hasen is right here:

I understand Breyer’s reluctance to leave the court in the face of public pressure to step down. If he does retire, it might look like he was doing it to help the party of the president, Bill Clinton, who appointed him. The public campaign to convince Breyer to do it also could well backfire (and of course this article could be viewed by the justice, if he sees it, as part of the campaign).

But Breyer, a former Harvard Law professor, is smart. Although his ideal of the court being above the fray in politics is a worthy aspirational goal, he must know it doesn’t reflect the current moment. He also must know that he’s not infallible, looking at the experience of his friend Justice Ruth Bader Ginsburg. She passed up the chance to retire when Barack Obama was president and Democrats controlled the Senate. She lived a few more years despite multiple cancer diagnoses, but she sadly did not live to see Joe Biden take office. She died, allowing Trump to replace her with Supreme Court Justice Amy Coney Barrett. This turned the court from a 5-4 conservative court where the liberal justices could sometimes pick off a conservative into a 6-3 court where that task is considerably harder.

Like Hasen, I’m sympathetic to Breyer’s view of the judiciary. In my ideal world, Supreme Court Justices, in particular, would retire at a reasonable age (say, 70) based on their health and life circumstances without regard to national politics. (In a truly ideal world, the decision wouldn’t be up to the Justices or the vagaries of the election cycle; we’d have a more systematic process in place. But we’re bound by the Constitution of 1787 and its lifetime appointments.) But we don’t live in that world.

The judiciary, and the Supreme Court in particular, are inherently political. They’re not supposed to be partisan or ideological. Alas, that has never really been the case and the partisan wrangling has really heated up in the last four decades or so. Justices can’t be the only ones pretending otherwise.

Indeed, as the above-linked NYT report notes, there’s pretty good evidence that they very much take politics into account in timing their retirements.

If judges were truly apolitical, they would not time their departures with politics in mind. But they do, at least on the lower federal courts, according to a new study that looked at retirements among federal judges before and after elections in which a president of a different political party gained control of the White House.

“When the presidency changes from the opposite party of the president who appointed the judge to the same party, judges are substantially more likely to retire just after the election than just before the election,” said Ross M. Stolzenberg, a demographer at the University of Chicago, who conducted the study with James T. Lindgren, a law professor at Northwestern. (The effect was somewhat stronger for judges appointed by Republican presidents.)

“I was absolutely stunned by this,” Professor Stolzenberg said. “I guess I should be surprised that I was surprised. But I’d like to think that judges are not political.”

The Constitution grants federal judges life tenure to insulate them from politics. But it seems that politics plays a role at both the beginning and the end of their careers, not only during what has become a brutally partisan confirmation process but also in retirement decisions.

Professor Stolzenberg said he found the second part puzzling.

“They have lifetime appointments,” he said. “What’s in it for them? They have every reason to not care about politics anymore, and they’re acting very politically.”

Presumably, a lifetime studying the law, culminating in decades at the apex of deciding what the law is makes them care very much about the future of our legal system. Surely, Antonin Scalia and Ruth Bader Ginsburg would have preferred to be replaced by likeminded Justices rather than those who would vote to undo their life’s work.

Still, especially at the highest level, many stay as long as they possibly can.

“A lot of justices have passed up a supposedly politically opportune retirement window,” Professor Chabot said.

“Since 1954, 16 justices have served an extended tenure of at least 18 years (and been over the general retirement threshold of age 65),” she wrote in her 2019 study. “A majority of justices in this window passed up opportunities to retire to ideologically compatible presidents.”

There were incentives to stay. “It’s an incredibly powerful and rewarding and desirable job to continue doing if you feel you are still able to do it,” she said.

Professor Stolzenberg said that was the least of it. Staying on the court, he said, was correlated to a longer life.

“Some years ago, I published a paper in The Journal of Demography that looked at the effects of retirement by Supreme Court justices on their future longevity,” he said. “I found that the effect of retirement was about the same as smoking two packs of cigarettes a day.”

“These people love their work,” he said. “It makes them strong. It makes them happy. That’s what I think about Justice Breyer. I would guess he would rather do anything but retire.”

In a different walk of life, Nick Saban, the 69-year-old coach of the football team at my Alabama mater, has signed a contract extension through the 2028 season. He has all the money he can possibly need and is coming off his 7th national championship, more than any other coach in history and more than every active coach, combined. He’ll turn 70 early in the upcoming season and would be 77 when this contract ends.

Why isn’t he hanging it up? Well, he tells us, “I don’t know what the hell I would do if I wasn’t coaching. I don’t even want to imagine it.”

I suspect Breyer will be more likely to postpone retirement for that reason than because of the optics.

FILED UNDER: Law and the Courts, Supreme Court
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Of course we and he shouldn’t be worried about it and of course there will be complaints about it. SSDD.

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  2. Moosebreath says:

    Who was the last Supreme Court Justice to have voluntarily retired under a President whose political views were opposed to his (i.e., Stevens, who was appointed by Ford, but was perceived as on the liberal end of the Court and retired under Obama does not count)? I think it is either Marshall (under Bush the Elder) or White (under Clinton), depending on where you think White falls on the political spectrum.

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  3. OzarkHillbilly says:

    @David Schuler: Of course we and he shouldn’t be worried about it

    Says the voice of one who needn’t worry.

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  4. gVOR08 says:
  5. mattbernius says:

    Leaving the Amy Coney Barrett issue aside for a sec, was there any of this handwringing about the optics of partisanship when Kennedy (somewhat unexpectedly) retired and was replaced in 2018 ahead of the midterm elections?

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  6. @David Schuler:

    Of course we and he shouldn’t be worried about it

    This strikes me as a profoundly odd position. Why wouldn’t anyone who understands the role the Court plays be concerned about who sits on it? And since the timing of retirement affects who occupies one of 9 seats, it seems a pretty significant thing to be aware of and to have opinions concerning.

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  7. A general comment based on one of the quoted pieces: it is always amazing to me that anyone thinks that judges/courts are actually apolitical once appointed. I think it demonstrates a lack of understanding of what “politics” really means. It is much, much more than campaigns and elections. Judges are certainly shields from certain kinds of political pressures, but it is simply not the case that they exist outside of politics.

    And I also certainly understand the personal appeal of holding on to a SCOTUS position until the very end, but that is putting personal preferences over the very legitimate need for a regular and orderly process (and there is no denying that leaving these vacancies to chance has created deeper problems in our politics than just the short-term issue of vacancies). As such, that is why we ought to have terms linked to these offices which would create a useful and desirable regularity.

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  8. Barry says:

    “Should he be worried about the appearance of partisan gaming?”

    No. Kennedy was not, the entire GOP is not.

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  9. James Joyner says:

    @Steven L. Taylor: I think most of the time when people say “political” they really mean “partisan.” We see that all the time, for example, in the civil-military relations debate. I tend to cut people slack for making that mistake, as it’s so common, but it is rather annoying.

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  10. Kingdaddy says:

    Minor nit: I believe the preferred way of shortening “University of California, Irvine” is “UC Irvine,” not “California-Irvine.”

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  11. Mister Bluster says:

    When I lived in San Francisco ’74-’75 I heard and read references to Cal-Berkeley now and then. Or just Berkeley. Most people knew where that was. But it was a long time ago.

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  12. wr says:

    If Kennedy actually cares about the values he claims to hold dear more than his own image, then he would tactically resign. Staying in power and risking a 7-2 quasi-fascist court that will undo everything he ever ruled on rather than looking “political” to people who already hate him is among the most narcissistic acts I’ve ever heard of.

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  13. wr says:

    @Mister Bluster: “When I lived in San Francisco ’74-’75 I heard and read references to Cal-Berkeley now and then. Or just Berkeley”

    That’s probably because Berkeley has always been called “Cal” — most likely because it was the first University of California. All the other campuses take the UC formulation — like UC Riverside, where I teach…

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  14. Stormy Dragon says:

    In a different walk of life, Nick Saban, the 69-year-old coach of the football team at my Alabama mater, has signed a contract extension through the 2028 season. He has all the money he can possibly need and is coming off his 7th national championship, more than any other coach in history and more than every active coach, combined. He’ll turn 70 early in the upcoming season and would be 77 when this contract ends.

    If Saban dies at the wrong time, Auburn doesn’t get to choose a new unreplaceable Alabama head coach who will deliberately lose the Iron Bowl every year.

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  15. @Kingdaddy: @Mister Bluster: @wr:

    As a fellow alum, I second Kingdaddy’s nit pick.

    And yes, Berkeley is, well, Berkeley and they are the only school in the UC system to be referred to as “Cal” (see, e.g., their football helmets). It is also the only one to be immediately identified by its city and not as UCx.

    UC schools, apart from Berkeley, are typically either UC, City Name and/or UCx.

    UCLA, UCSD, UCSB, etc.

    In the context of a conversation, one might refer to “Davis” or “Irvine” but none of that has the clear implication of “Berkeley.”

    The other system in the state, the California State System uses “Cal” like Cal State Long Beach or Cal State Fullerton.

    We UC grads don’t like to be associated too much with the Cal State riff-raff, dontcha know. 😉 (a joke that may only resonate with folks who have lived in CA.

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  16. @Stormy Dragon: Indeed.

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  17. Andy says:

    In contemporary politics, there seems to be an increasing disconnect between what people say they want, what they are actually willing to do to achieve what they say they want, and what they actually do.

    This kerfuffle is another data point.

    First of all, no one knows Breyer’s conditions for retirement despite the implications made in the Hansen op-ed and the NYT article it references. He may well want to increase the chances of his replacement sharing his ideological worldview or maybe he doesn’t care. The speculative op-ed and NYT piece, which attempt to divine intent based on a rather banal speech, doesn’t do that.

    So this:

    The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls for his retirement from fellow progressives. The reason? Breyer apparently worries that retiring in the face of a public pressure campaign from Democrats will increase polarization and a politicized view of the Supreme Court.

    is pure speculation.

    Secondly, if you actually believe that Breyer is worried about retiring due to a pressure campaign, then the logical course of action is to not engage in a pressure campaign. Yet that’s exactly what’s happening. The people who most want Breyer to retire are engaging in advocacy that will very likely decrease the chance that Breyer will do what they want.

    This same lack of logic was recently in play with Manchin/filibuster/HR1 kerfuffle. It was obvious from the start that a pressure campaign would fail there as well, yet advocates persisted anyway.

    I think it’s all more evidence that in our politics virtue signaling has become more important than actual achievements, particularly when the virtue-signaling includes the kind of catastrophizing language that has now become normalized.

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  18. @Andy: While I follow your logic, it strikes me as strained, insofar as I don’t believe that pressure makes Breyer/Manchin dig in further actually is true (at least not that the marginal effects of one more op/ed matters in the least), and I certainly don’t believe that, therefore, if everyone would just lay off that the opposite would occur.

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  19. al Ameda says:

    @mattbernius:

    Leaving the Amy Coney Barrett issue aside for a sec, was there any of this handwringing about the optics of partisanship when Kennedy (somewhat unexpectedly) retired and was replaced in 2018 ahead of the midterm elections?

    Exactly.
    Justice Kennedy oh-so-coincidentally/conveniently stepped aside in 2018.to allow a Republican President to nominate a conservative to the Court.

    The lesson I take from this is: when it comes to the judiciary Republicans and conservatives do not care about optics, only about power, while liberals are reluctant to openly seek power.

    Personallly, I think Justice Breyer should retire while the mathematics of congressional and presidential power favor Democrats and liberals.

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  20. Andy says:

    @Steven L. Taylor:

    While I follow your logic, it strikes me as strained, insofar as I don’t believe that pressure makes Breyer/Manchin dig in further actually is true (at least not that the marginal effects of one more op/ed matters in the least), and I certainly don’t believe that, therefore, if everyone would just lay off that the opposite would occur.

    I think if it was just one op-ed, you’d be right, but it’s not just one op-ed.

    I also think we can debate about whether pressure causes one to “dig in” or not – I think this does happen frequently though it’s not clear if it is salient in these particular cases. Politicians and even Supreme Court Justices are likely well aware of the context and currents of public discourse and how actions they take would be perceived in that context.

    And if Breyer does decide to retire, it’s pretty assured that those who have publically called on him to take that action would take credit and celebrate it while Republicans would assume it was a purely strategic decision regardless of Breyer’s claimed reasons.

    So if one actually believes that Breyer (or any Justice) doesn’t want his retirement to appear to be a strategic partisan decision (and many of those calling on him to strategically retire are making that assumption), then it makes little sense to purposely take actions that would increase that perception, especially considering the quite significant and serious implications of Breyer’s potential retirement for the future of the Court.

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  21. Andy says:

    @mattbernius:

    Leaving the Amy Coney Barrett issue aside for a sec, was there any of this handwringing about the optics of partisanship when Kennedy (somewhat unexpectedly) retired and was replaced in 2018 ahead of the midterm elections?

    The situations do not really compare.

    First, there is no evidence that partisan perception is a factor in whatever plans Breyer may or may not have to exit the Court. The optics and hand-wringing today are coming from the left because of unsupported assumptions about Breyer’s thinking, and fear of a repeat of Ginsberg/Barrett.

    Secondly, there wasn’t hand-wringing for Kennedy to strategically retire because, as you noted, he did so unexpectedly.

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  22. DrDaveT says:

    Staying on the court, he said, was correlated to a longer life.

    Yes, but was that a good thing? What did they do with those extra years they spent on the court?

    As someone dealing with two sets of elderly parents, I do not want 80+ year old Supreme Court justices. Ever. Period.

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