The Arrogance of Demanding Justice Breyer’s Retirement

By Co-Editor Margaret Drew

The National Law Journal announced the results of a poll indicating that most lawyers responding do not want Justice Breyer to retire.  That prompted me to write on this topic that has been troubling me for some time.  I was shocked when I first read of the retirement demands. 

My first response was embarrassment, with more than a bit of annoyance.  Justice Breyer has been a diligent and thoughtful member of the Supreme Court.  He has devoted most of his life to public service.  He is brilliant and engaged.  A hallmark of Justice Breyer’s service has been the dignity with which he performs his duties. Which of us has the standing to suggest that the time is right for Justice Breyer’s judicial career to end.  In terms of  Supreme Court memory, Justice Breyer is one of the justices who can bring the perspective that comes with years of experience on the Court.  He is also one of the few that brings a long history of engaging in civil debate with colleagues that leaves relationships intact. Justice Breyer maintains his dignity during an era of judicial opinions that disparage their fellow justices in harsh and sometimes personal terms.  To suggest that anyone other than Justice Breyer has the right to make a retirement decision is arrogant.  The retirement suggestion discounts Justice Breyer’s autonomy and injures his dignity.  

Exploring prior similar demands is a cautionary tale. Justice Rehnquist pressured Justice O’Conner to retire when legal watchers expected the Chief Justice to resign due to his poor health.  Much to the chagrin of neo-liberals Justice Alito was Justice O’Conner’s replacement.  And Justice Rehnquist died two months after Justice O’Conner’s retirement announcement.   Calls for Justice Ginsberg’s retirement presumed that a republican controlled senate would approve an Obama named successor.  Speculative thinking given the Senate’s treatment of Merrick Garland’s nomination.   Similarly calls for Justice Breyer’s resignation ignore the political reality that members of the Senate might similarly block any nomination by President Biden.  Without a super-win for Democrats in the upcoming mid-term elections, approval of the President’s nominee is not assured.   Forced decision-making often brings adverse consequences. 

Both Justice Ginsberg and Justice Breyer resisted basing retirement decisions based on politics, appropriate for their positions.  

Justice Breyer needs to be honored for his unquestionable loyalty and service to the bench and to our Constitution, as flawed as both may be.  Human dignity must be preserved and our trust in this patriot should include respecting his decision-making.