For years, the late Justice Ruth Bader Ginsburg batted away pleas for her to retire from the nation’s highest court while Democrats controlled the White House and the Senate, saying that concerns about her health and age were much ado about nothing.
“Tell me who the president could have nominated this spring,” she told a reporter in 2014, “that you would rather see on the court than me?”
Court-watchers know what happened next: Democrats lost the Senate four months later and Majority Leader Mitch McConnell (R-KY) scuttled attempts to put any nominee on the Supreme Court to replace the late Justice Antonin Scalia until a new president was elected, which gave President Donald Trump the ability to name Scalia’s replacement. Ginsburg, despite her advancing age and battles with pancreatic and lung cancers, continued to serve on the bench until she passed away 46 days before the 2020 presidential election. Justice Amy Coney Barrett was confirmed to replace her—cementing the Supreme Court’s conservative majority for years, and putting much of Ginsburg’s own judicial legacy at risk of being undone.
Now, with a razor-thin Senate majority and President Joe Biden in the White House, progressives are becoming concerned that history is repeating itself yet again with Justice Stephen Breyer, the eldest member of the nine-person court and the senior-most justice of the court’s liberal wing.
“Law professors are supposed to speak respectfully of these people and in hushed tones about Justice Breyer and all that, but he’s being an idiot,” said Professor Paul Campos of the University of Colorado in Boulder. “And a selfish idiot, to boot.”
Dorothy Samuels, a senior fellow at the Brennan Center for Justice who called Ginsburg’s decision to remain on the court “terribly self-centered” in retrospect, told The Daily Beast that the episode feels like re-living the same error all over again.
“Didn’t we just see this movie?” Samuels said. “Ruth Bader Ginsburg made a tragic error, severely damaging to the Supreme Court’s direction and her legacy, by staying too long on the Supreme Court and allowing former President Trump to name her successor. There’s a cautionary lesson there for Justice Breyer… It should not require a private or public nudge from President Biden for Justice Breyer to announce his retirement.”
In the weeks before the end of the Supreme Court’s most recent term, watchers of the nation’s highest court became high-key obsessed with the notion that Breyer might retire from the seat he has occupied for more than a quarter-century. But with the court’s final decisions having come and gone without an announcement that its eldest member would retire, liberals are increasingly agitated that an opportunity for Democrats to secure what little remains of the court’s liberal membership could once again be slipping away.
But there’s little agreement on what, if anything, Biden could do to change Breyer’s mind.
“Justice Breyer has hammered home the idea that the court is not just another political body, but an apolitical institution which derives authority from being distinct from the lowbrow business of politics,” said Professor Anthony Michael Kreis of the Georgia State University College of Law. While Kreis views that notion as “complete nonsense,” he said, it’s likely an indicator that Biden applying “even the whiff of pressure” on Breyer to retire would backfire spectacularly.
“Justice Breyer is playing a dangerous game with an evenly divided Senate filled with septuagenarians and octogenarians—surely, he must realize that by now and has decided to not make much of it anyway,” Kreis said. “If he’s that indifferent to that perilous dynamic right after Justice Ginsburg’s disastrous choice to not retire, presidential arm-twisting probably won’t do much good.”
Despite occasional efforts to implement them, Supreme Court members do not have term limits, meaning that the only real limit on a justice’s tenure, beyond their own judgment, is their mortality.
After the death of Ginsburg, liberal groups were particularly sharp in recent calls for Breyer to, in the words of Danny DeVito, “retire bitch.” One campaign coordinated by the progressive group Demand Justice ran ads in the New York Times and Politico, calling Breyer “a remarkable jurist,” but announcing that “with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”
In case Breyer missed those ads, Demand Justice also hired a truck to drive around the U.S. Supreme Court Building this spring with a simpler message: “BREYER, RETIRE.”
Now that Breyer’s most logical moment to retire has passed, some progressives have floated Biden getting personally involved in nudging the justice on the matter, despite public assurances from the White House that the president has no interest in doing so.
“It is up to the justices to decide whether there will be an opening,” White House press secretary Jen Psaki told reporters on June 30, when asked about Biden’s campaign pledge to name a Black woman to the court, which would be a historical first. “If there’s an opportunity, he remains by that commitment, but we will leave it to any justice to determine the timeline of their retirement.”
Biden’s apparent decision is likely the right one, according to court-watchers, many of whom nonetheless wish that Breyer would take his leave.
Professor Randall Kennedy of Harvard Law School told The Daily Beast that he would find it hard to believe that Biden “could convey anything to the Justice that he does not already know,” and that even a mild inquiry “would be widely seen as improper.”
“I suppose that he could try to entice Breyer to resign by indicating that the replacement would definitely be to Breyer’s liking—maybe he could even ask who Breyer would prefer,” Kennedy said. “I suspect, then, that it might be best for Biden to stay mum.”
In 2013, President Barack Obama invited Ginsburg to a private lunch in which he gently hinted that, with control of the Senate in doubt, it would be hard for him to confirm a Supreme Court justice if a vacancy arose. The effort, obviously, failed to inspire Ginsburg to retire.
Other presidents, mindful that the spectre of death and the singular importance of the Supreme Court, have been more forceful in their attempts to nudge certain members of the court into early retirement. President Lyndon Johnson convinced Justice Arthur Goldberg to leave the court to become the United States ambassador to the United Nations, replacing him on the court with longtime ally Abe Fortas, and helped nudge Justice Tom C. Clark off the court by naming his son, Ramsey, as head of the Justice Department.
But justices have often rued their decision to leave the bench prematurely. Former Justice Sandra Day O’Connor, who retired in 2006 to take care of her ailing husband, eventually told her biographer that the decision was “the dumbest thing I ever did,” and Goldberg later declared that his decision to leave for the United Nations post was mere “vanity.”
Breyer, according to Supreme Court experts, is likely to be mindful of his legacy now more than ever—which means that even the most delicate touch could upturn his own private thoughts on retirement.
“Breyer is different from Ginsburg in that he does not enjoy the same kind of cult of personality that she did. He’s frankly not as well known or as beloved,” said Maya Sen, a political scientist and professor of public policy at Harvard University’s John F. Kennedy School of Government. “That said, it’s pretty clear that he views strategically timed retirements with distaste and believes that they contribute to the politicization of the court.”
On that point, Breyer has made his feelings explicit.
“If the public sees judges as politicians in robes,” Breyer said during a lecture at Harvard Law in April, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”
“Structural alteration motivated by the perception of political influence,” Breyer said, “can only feed that latter perception, further eroding that trust.”
“In all likelihood the Senate will be in Democratic control at least until after the November 2022 election and January 2023,” Chemerinsky said. “The key is that Breyer retire before that and a retirement next June will do that.”
But with the Senate majority only one person away from McConnell calling the shots on any Supreme Court nomination—the minority leader said last month that “we’ll have to wait and see what happens” if a vacancy occurred under his watch, and Democrats know what that portends—that timeline is no guarantee.
“He’s behaving abominably,” said Campos. “I'm hoping that Joe Biden or whoever can call upon, you know, better angels of our nature to the extent that they exist, to get him to do the right thing.”