Stop Telling Justice Breyer To Retire
He's not an idiot. He knows the arguments. And this sort of pressure is counter-productive
Only 12 living people on earth- the nine currently serving Justices, and three retired ones- can tell you what it is like to serve on the US Supreme Court. But we have some clues, if you watch the Court closely. For instance, most of the Court’s business is clarifying the law in “circuit splits”, where courts in different parts of the country came to different conclusions on an issue that affects a lot of cases. Another thing we know is that many of the Justices have a specific intellectual interest where they try to shape the law- for Justice Gorsuch, it is Indian tribal law; for Justice Breyer, intellectual property; and for the late Justice Ginsburg, it was feminism and women’s rights.
And yes, of course, we know that in cases of very high political valence, the Justices tend to, but do not, 100 percent of the time, vote with their party.
Essentially, then, being a Justice on the Supreme Court is mostly resolving a lot of important, but technical, legal issues in cases the general public does not care about but the bench, bar, and parties care a lot about, and then occasionally resolving a very public dispute on a big hotly contested political issue.
So what does that tell us about the typical Supreme Court Justice? Well, it means that they contain some mixture of intellectual, “call them as I see them” judging, legal scholarship, and yes, some politics. The weight of these various factors depends on the Justice. For instance, to discuss long dead Justices, Earl Warren and William O. Douglas tended to be heavily weighted on the political side of that ledger, with a less scholastic approach; in contrast, John Paul Stevens was more scholarly and somewhat less political.
And this carries over onto retirement decisions. Some such decisions are nakedly strategic- it certainly appears, for instance, that Anthony Kennedy may have retired because it would allow his protege, Brett Kavanaugh, to be elevated. Some other Justices just want to stay on as long as possible- Thurgood Marshall, for instance, stayed almost to his death, only retired when he was too weak to do the work anymore, and really wasn’t thinking about the 1992 election when he did. Byron White, although nominally a Democrat, was conservative and surely knew that he would be replaced with a liberal Justice (Ginsburg, as it turned out) when he retired during the Clinton administration.
The important thing to remember, however, is that Justices are not stupid. They understand the political issues that surround retirements and confirmations. They also understand that each Justice brings a unique voice and unique experience to the Court, and has specialized expertise that other Justices defer to. The Justices listen to Breyer on intellectual property issues, and to Gorsuch on Indian tribal issues. They all make their decisions as to retirement based on how they weigh those factors, personally.
Which drives partisans BATS. Partisans, of course, only care about the few politically driven cases. They really don’t care if every intellectual property case comes out wrong because Justice Breyer isn’t on the Court. And they view the Court solely through political lenses- let’s get a majority of “our judges” onto the Court so that it does what we want it to. Because of that, liberal partisans have started to make a cottage industry of demanding liberal justices retire to make way for younger replacements.
This started with Ruth Ginsburg and, frankly, it was full of sexist tropes. Older women being forced out of the workforce is, sad to say, a common story in this world, and forcing the most prominent, successful, elderly female lawyer, a feminist trailblazer, out of her job when she did not want to go displayed more than a bit of misogyny. Partisans, of course, denied any sexist intent, but I have to say that these excuses left me a little cold- these same people, for instance, often rushed to call any substantive criticism of Hillary Clinton “sexist” even if it was just preference for Bernie Sanders' more left-wing ideology or criticism of unethical conduct. If we are going to label standard political criticisms of Hillary Clinton as sexist, surely trying to force a feminist hero out of her job (and, in doing so, claiming that she contributes nothing more than a vote in big political cases which any liberal Justice could provide) is more than a bit problematic.
Ginsburg, of course, famously did not retire, despite being quite aware of the campaigns to pressure her to. And now, the same people have turned their fire on Justice Stephen Breyer, making many of the same arguments.
The thing is, there’s no way Justice Breyer is not aware of these arguments. He’s quite aware of the calculus on strategic retirements. The only possible effect of a public pressure campaign would be to get his backbone up- “I’ll show these guys trying to send me off to pasture! I’ll stay on the job!”. That may very well have played into Ruth Ginsburg’s decision to stay on the Court.
But, I can hear you say, isn’t that selfish? Only in a sense that I think liberals should reject. Liberalism has always placed a high premium on individual self-actualization through work. No liberal, for instance, countenances telling women to stay home and have children rather than working because it might be better for the future of the country if we had more babies- that’s a right wing argument, and for a reason! Liberals fought for age discrimination legislation, so that corporations can’t fire their senior, experienced staff and replace them with younger, cheaper workers. The notion that you should have to give up your job and go off and die somewhere for the good of the rest of us is not an argument that liberals should be very receptive to.
But, but, but, what about Roe v. Wade? Well, first of all, it’s dead already- the replacement of Kennedy with Kavanaugh ensured that. But second of all, you have to understand that the Supreme Court is not simply a national abortion tribunal. It decides lots of cases, and we need the Justices to have areas of real expertise. Justice Gorsuch’s knowledge of Indian law has been enormously helpful to tribes and tribe members already. Yes, liberals are going to lose some cases they might have won if Ginsburg had retired earlier. But we also benefitted, in ways we may not know for decades until the Justices’ papers are all released, from Ginsburg being in those conferences and speaking from personal experience. For all we know, Ginsburg played a big role in putting together the majority in the Bostock case that recognized gay and trans people’s rights in employment discrimination cases. It’s not as simple as abortion.
The most important thing, however, is that even if you disagree with me and think Justice Breyer should retire, a pressure campaign either has no effect (because he has already made up his mind) or a counterproductive effect (as the Ginsburg pressure campaign may have had). You need to just quiet down and let him make up his own mind. Only he- and 11 other living people- can understand all the factors at play.