Breyer's Dishonorable Decision on Retirement

          With forty years of honorable public service in Congress and the federal judiciary, Justice Stephen Breyer deserves to be celebrated and thanked when he takes his well-earned retirement. For now, however, Breyer is indulging his ego by declining at a politically critical moment to retire so as best to serve the Court he loves.

Breyer is not wrong to worry about the possible effect of acceding to calls from Democrats and the legal left to retire now with a Democratic president and Democrats in fragile control of the Senate. But it appears, from his interview last week [July15] with CNN’s Joan Biskupic that he is resisting in part because he enjoys his new role as the leader of the Court’s liberal bloc and because he thinks he can make an invaluable contribution by staying on the Court instead of yielding to a new and younger justice.

For Breyer, a politically strategic retirement conflicts with his idealized image of the Court as a body above and removed from petty partisanship. Sadly, that ship sailed sixty years ago when Republicans, led by among others Richard Nixon, realized in the 1960s that they could make political hay by turning the Supreme Court into a political battleground instead of a temple of justice.

Worried about what Nixon might do to the Court if elected president, Chief Justice Earl Warren started the now well established practice of politically strategic retirements by announcing his intention to retire in 1968 in time for President Lyndon Johnson to appoint a successor who would honor Warren’s legacy in outlawing racial segregation and instituting the criminal procedure revolution.

Republicans thwarted Warren’s plan by exploiting Johnson’s ill-conceived decision to appoint a longtime friend, Abe Fortas, as chief justice. Apart from the appearance of presidential cronyism, Fortas had ethics issues that Senate Republicans used to prevent a floor vote on the nomination. This episode should serve as a warning today for Breyer of the political risks in mishandling Supreme Court succession with partisan polarization at a peak.

Since Warren’s retirement, every justice who has retired in good health has looked to the then-current political conditions in making the decision. The list includes Republican and Democratic appointed justices alike, who wanted their successors to be nominated by a president of their party. One Republican justice, Antonin Scalia, went so far as to explain publicly that, of course, he would not retire with a Democrat in the White House who might appoint a successor who would undo Scalia’s legacy on the Court.

Scott Lemiieux, a lecturer in political science at the University of Washington, made this point two years ago in an op-ed in The Washington Post. The headline writer aptly summarized Lemieux’s argument. “When do Supreme Court justices retire? When the politics are right.” Lemeiux went further by contending that the Court’s senior Democratic-appointed justices, Breyer and Ruth Bader Ginsburg, should have retired several years earlier with Barack Obama in the White House and Democrats in the majority in the Senate.

Reviewing the history, the first of the successful modern-era strategic retirements appears to have been Potter Stewart’s decision in 1981 to step down as soon as his fellow Republican Ronald Reagan settled into the White House. Two more justices, with deep roots in Republican politics, also chose to retire during Reagan’s presidency to give him the opportunity to pack the Court with likeminded Republicans. Chief Justice Warren E. Burger decided to step down in 1986 in order to lead the observance the next year of the bicentennial of the U.S. Constitution. The pro-business Republican Lewis Powell also chose to retire in 1987, but Reagan overplayed his hand by daring the Democratic-majority Senate to reject his nominee, the archconservtive Robert Bork.

As Burger’s successor, Reagan chose to elevate the conservative associate justice William H. Rehnquist, who also had deep roots in Republican politics in his adopted home state of Arizona and the Nixon administration. Rehnquist’s elevation created a vacancy that Reagan filled by nominating Antonin Scalia, who had established himself at the ideological edge of conservative legal thought as a professor and a Reagan-appointed judge on the D.C. Circuit. An untimely death in 2016 intervened to thwart Scalia’s plan to retire with a Republican in the White House, but the Senate’s Republican leader Mitch McConnell stepped in to make things right by refusing to allow a hearing for Merrick Garland, the well-regarded appellate judge that President Obama chose as Scalia’s successor.

Like the Fortas episode, the Garland episode should put Breyer on notice today that he risks his legacy by leaving the appointment of his successor to the political fates. The 50-50 Senate, with Vice President Kamala Harris as the tie-breaking vote, could flip to Republican control if any member of the Democratic caucus were to die or to resign. That would give McConnell the power once again to prevent a Democratic president, Joe Biden, from filling the seat.

Four other justices since the Reagan presidency timed their retirements  with an eye on the White House: Byron White retired in 1993 as soon as Bill Clinton settled into the White House; two Republican-appointed justices who voted with the Court’s liberal bloc, David Souter and John Paul Stevens, chose to retire in 2009 and 2010 respectively in relative good health to allow Obama to name their successors. And. most recently, Anthony M. Kennedy retired in 2019 after confiding to Trump administration aides that he wanted to retire with a Republican in the White House.

Ginsburg resisted calls to step down, fearing that no nominee with likeminded views could win confirmation. With her death, any chance to protect her legacy vanished with Donald Trump in the White House and Republicans in control in the Senate. This episode also should serve as a warning for Breyer as he avoids making plans for his retirement.

Breyer may think that he is doing the honorable thing by staying on the Court, but he is dishonorably inviting the likelihood that the Court will be damaged further unless he now makes the honorable decision to step aside.