Justice Breyer Is Retiring, Which Is Normal

And it's about time, too.

Stephen Breyer will retire from the Supreme Court, and I’m not surprised. When Breyer published a book last year decrying modern partisan judicial politics, a lot of people took it as a statement that he was planning to stick around until he died. But I did not:

Josh Barro @jbarro

People keep talking about the Breyer book as a statement that he will never retire, but isn’t it at least as likely a parting shot before he retires — saying that his retirement is not an endorsement of the liberal judiciary politics he surely finds annoying?

Josh Barro @jbarro

Like if people spent a year yelling “retire bitch” at me and I actually was going to retire, I might be inclined to write a book insisting that the “retire bitch” crowd had not been the boss of me.

A problem with the narrative that Breyer gave into liberal pressure to retire is that Justices O’Connor, Souter, Stevens and Kennedy all similarly retired “on schedule” — choosing to step down at a time when they could be replaced by a president of the right party such that their successors would have ideology similar to their own. What Breyer is doing now is normal behavior for justices in recent decades.

What was aberrant was Ruth Bader Ginsburg’s choice to stay on the court in 2014, when she was 81 years old and a two-time cancer survivor. People have tended to talk about her and Breyer as a package deal — that both should have stepped down so their replacements could have been appointed while Barack Obama was president and Democrats held the Senate. And maybe they were both over the age threshold where they had an ideological duty to retire, but the case for retirement was significantly stronger for Ginsburg than for Breyer. She was five years older than him and a survivor of a particularly deadly form of cancer. She was known to be much likelier than him to die before the next good retirement opportunity, and that is in fact what happened.¹

Unfortunately, the necessity of Ginsburg’s retirement was obscured by a weird cult of personality that venerated her dissents and treated her as a uniquely essential voice rather than someone who could have been replaced by any number of younger, highly-qualified jurists. The “Notorious RBG” movement got what it prioritized: more righteous statements in defeat from the court’s liberal justices.

But Breyer is now eight years older than he was when he declined to retire in 2014, with actuarial tables looking less favorable to him by the day. Whatever the merits of his choice to stay on the court then, it’s clearly time for him to step down now, and apparently both he and the activists who were screaming “RETIRE BITCH” at him agree on that.

A question, then, is what everyone was so mad at each other about.

There are the obvious matters: Until yesterday, the activists didn’t know Breyer would actually step down this year, and nobody likes being called a bitch. But they also have a major difference of vision about what the court is for.

Activists increasingly view the court as an essentially political policy-making body, where the most important thing is to fill the seats with your allies. Breyer, like a lot of judges, prefers to emphasize the areas of agreement across the ideological spectrum as judges seek to find the law, which may not align with their own policy preferences.

The truth I think lies somewhere in the middle.

The courts are not as political as the activists make them out to be. There is a reason former President Trump had so little luck with his allies’ litigation over the 2020 election: his suits were meritless and did not get a sympathetic ear even from the justices he appointed. They weren’t helpful either with Trump’s recent efforts to assert executive privilege to block congressional investigation of his actions around the January 6 riot.

And the courts also should not be as political as the activists often want them to be.

You could see this most clearly in litigation over Trump’s and Biden’s efforts to make policy through creative assertions of executive power. For most political observers, the analysis of whether Trump had the authority to ban immigration from certain Muslim-majority countries or Biden could issue rules requiring COVID vaccination of large swaths of the population started and ended with whether those were good policy ideas. But the president’s authority is governed by laws that make it sometimes broad and sometimes more narrow, and court decisions in these areas should not necessarily align (and have not necessarily aligned) with a particular policy outlook.

All that said, the courts are to a significant extent political, and the justices don’t totally leave their policy views out of their decisions even when they try to (which is sometimes).

So to have a well-functioning court, you should have justices with a strong commitment to following the law even if it doesn’t serve their particular policy views, and who have a diversity of ideological views that reflects the country’s political balance, just in case. This is a reason it’s important for Breyer to be replaced by a liberal: If he were replaced by a conservative, the court would get more ideologically out of whack with the country than it is now.

Now, I feel more at peace with this vision of the court than many of you probably do because, if I were on the court, I would sit somewhere between Justices Roberts and Kagan, and because I have a high degree of comfort with the idea that the Constitution does not always say what I would like it to. I think Citizens United was correct. I think Heller was correct, and I’ve held onto that view even as my policy preferences about guns shifted over the years such that I now wish Heller were not correct.

More broadly, I think for most of my life, courts with O’Connor and then Kennedy and then Roberts at their center were getting important cases right most of the time.² The system was working. Now, with Kavanaugh or Gorsuch at the center, the court is too far right for my liking. But it’s a lot easier for me to envision the court returning to what I would see as an appropriate balance than it is for liberals, since I only need it to move one or one-and-a-half ticks, not three.

And the first step toward making that leftward nudge possible is Breyer retiring to be replaced by a young liberal.

1. Ginsburg also had significantly greater reason to worry in 2014 she might die within the next decade than Antonin Scalia did when he failed to retire at his last good opportunity in 2006, when he was only 70 years old.

2. One of my least-favorite decisions from that era was a leftward error: Kelo v. New London.