It’s tough when your own people want to fire you. That’s the situation Supreme Court Justice Stephen Breyer now faces. He is well-liked and admired, but his “crime” is that he is just getting old. And the problem is our current, caustic partisanship.
Some think Breyer will, in fact, resign this year.
I predict that Justice Stephen Breyer will submit to President Joseph Biden by the end of this Supreme Court term a letter of resignation to become effective upon the confirmation of a successor. . . Under these circumstances, Breyer will grudgingly, but commendably, resign. He saw up close the debacle of Ruth Bader Ginsburg’s denouement. Surely he wants to guarantee that his legacy will be free of the awful stain that taints Ginsburg’s reputation. . .
For all of the good that she accomplished as an educator, litigator, and judge, Ginsburg’s memory will (and should) always be shadowed by a terrible misstep: her selfish refusal to resign when Barack Obama and a Democratic-led Senate was positioned to seat someone who would have carried forth and hopefully deepened a liberal jurisprudence attentive to the poor, friendly to labor, protective of the vulnerable, regardful of civil liberties, and attuned to the rights of women, particularly their bodily sovereignty. Instead, Ginsburg’s narcissism opened the door to a jurist who will likely, for a long time, work to impede if not roll back judicial liberalism.
But others think that it would be counterproductive to make such a bald-faced political move.
I tend to be of the view expressed by Noah Feldman several months ago, that pressing Breyer to step aside is affirmatively and aggressively counterproductive: The more we politicize the court and its work, the more judges and justices must perform their own neutrality. This isn’t just ego or narcissism; it is exactly the kind of institutionalism Breyer has expressed over and over throughout his career. “If the public sees judges as ‘politicians in robes,’ ” he said in an April speech that sent progressives into fits, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” When Breyer takes a bold public stand for neutral, technocratic judges, it’s not just because he believes that of himself. It’s because he wants us to believe that, because he thinks it’s necessary to preserve the legitimacy of the judicial branch.
The President nominates Supreme Court Justices, and the Senate confirms them. In the past, the Court was above politics. There were even times when a President would nominate a Justice as a philosophical replacement, not as a political pawn. And the Senate would do its job. But for the first time in United States history, Senate Leader Mitch McConnell snubbed President Obama, humiliating both President and nominee by refusing to even let the Senate talk to Merrick Garland (current Attorney General)—with almost a full year left in Obama’s term.
And McConnell has proudly and publicly promised to do the same again, for only the second time in all of American history, if he gets the chance, and President Biden nominates a replacement with a full quarter of his presidency remaining.
Of course, McConnell’s “let the people decide” rule didn’t hold up when Donald Trump nominated Amy Coney Barrett. McConnell rushed her confirmation just eight days before the 2020 election—an election Trump lost by seven million votes.
So much for “Let the people decide.”
Since a Supreme Court term is for life, most people think it is odd to consider having a Justice retire, instead of staying on. There was talk of having Ruth Bader Ginsberg retire during Obama’s presidency, but instead, she was replaced by Barrett, someone who could not be more diametrically opposed, philosophically; the two having nothing more than gender in common. And, of course, removing the Jewish Ginsberg’s voice solidified the Catholic hegemony of the Court. SEVEN of the nine Justices are now Catholic—more than 75%, while Catholics are only 20% of the U.S. population–hardly giving the country a “jury of our peers.”
Now Democrats are pressuring Breyer to resign before McConnell can kill any nomination in 2024—and even before the risk that, Republicans could take the Senate in 2022. In the past, the Senate saw its Constitutional role of “advise and consent,” as giving an opinion, but going ahead and confirming. In today’s toxic atmosphere, you can’t count on that, so it would be risky for Biden to wait until 2023 to get his first nomination.
People think resignation is uncommon, since Justices have a great job they could take to their grave. But the truth is, while Ginsberg died in office, of the previous 20 Justices who left office, 18 of them resigned. And in all of American history, the majority retired, and did not die in office.
Of the 18 most recent who retired,
• Anthony Kennedy, Sandra Day O’Connor, Lewis F. Powell, Jr., Warren E. Burger, Harry Blackmun, Potter Stewart, William J. Brennan, John Marshall Harlan II, and Earl Warren were all nominated by, and were replaced by, a Republican President.
• John Paul Stevens, Arthur Goldberg, and Tom C. Clark were nominated by, and were replaced by, a Democratic President.
• David Souter, and Charles Evans Whittacker were nominated by a Republican and were replaced by a Democratic President.
• Thurgood Marshall, Abe Fortas, Byron White, and Sherman Minton were nominated by a Democratic President and were replaced by a Republican President.
That’s a net gain of two for the Republicans.
One of the great battles over a nomination was in 1991, when ultra-conservative Clarence Thomas was nominated to replace liberal Thurgood Marshall, both African-Americans. The battle was over charges of sexual harassment.
In today’s “Me Too” world, Thomas would never have been nominated. It should be noted that Joe Biden held the key to Thomas’ rise to the court, but did not stop him. Biden still has to explain to women’s groups why he allowed the trashing of Anita Hill—which came back to haunt him during Brett Kavanaugh’s hearings.
It is not unheard-of for a Justice to resign for political purposes. In 1965, Lyndon Johnson knew the Supreme Court held the key to his “Great Society” programs. He needed an ally in the Judicial Branch. So he wanted Abe Fortas.
When Johnson, perceiving the need for judicial support for his Great Society programs, induced Justice Arthur Goldberg to resign to become ambassador to the United Nations, there was scant surprise in Washington that Fortas was nominated.
Perhaps Biden needs to find a similar “plum job” to offer Breyer. Then, it wouldn’t look as if Breyer were just making a political move by resigning. He could consider it a new challenge, instead of “being put out to pasture.”
