Last Monday, Senate Minority Leader Mitch McConnell made clear that if Republicans recapture the Senate next year, they would likely reject any Supreme Court nominee that President Biden put forward in 2024. This position is consistent with McConnell’s stance after the death of Justice Antonin Scalia, in 2016, when he prevented President Barack Obama from filling the seat. (About the possibility of the Senate confirming a nominee in 2023, McConnell was noncommittal.) His comments increased the pressure on Justice Stephen Breyer, who is eighty-two, and who many progressive activists hope will retire this year, before the midterms. But Breyer has indicated that he believes the timing of his retirement should not be dictated by politics. Judges, he stated at a lecture in April, “are loyal to the rule of law, not to the political party that helped to secure their appointment.”
To discuss this issue, I spoke by phone with Noah Feldman, a professor at Harvard Law School. In a recent column for Bloomberg, he argued that the Justice “can be trusted to do the right thing—provided liberal law professors don’t box him in by declaring that he ‘must’ resign. . . . Every column or television comment—the more prominent, the worse—traps Breyer into having to stay out so as not to appear to be acting as a partisan.” During our conversation, which has been edited for length and clarity, we discussed whether Breyer should make his decision based on who is President, what we might learn from Ruth Bader Ginsburg’s death, last year, and whether it made sense to view the Supreme Court as a political institution.
Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?
I think the retirement decision is overwhelmingly personal, and I would not presume to tell a Justice that he or she should stay in the job if he or she wanted to retire—that’s for sure. Then, like every other observer who cares about the living Constitution, I hope that Joe Biden has an opportunity to nominate someone to the Court who shares that broad preference, and we know that, if the Republicans were to take power in the Senate, it’s very unlikely that they would confirm such a nominee.
You say it’s personal, but it’s not personal in the sense that it affects millions of people.
Well, the way you put the question was, Do I think there’s a reason for him to stay on? There might be circumstances in which you could imagine that a Justice really wants to step down and you say to that Justice, “Gee, I think you owe it to the Republic to stay in your post.” Indeed, some of Justice [David] Souter’s former law clerks said that to Justice Souter during the George W. Bush Administration, when he would say that he was ready to throw in the towel. I can imagine circumstances like that do arise, but we’re not in those circumstances now.
But, if you thought that people telling Justice Breyer to retire would have the effect of getting him to retire, is that something that you would approve of?
I would think that if someone really wanted a Justice to retire, the logical way to do that would be to communicate that privately to the Justice. I think it has been a little odd when people for whom I have a lot of respect—important scholars and academics or public figures—think that the best way to convince a Justice to retire is to write an open letter.
If Patrick Leahy or Chuck Schumer ran into Justice Breyer and said, “I think you should retire,” would that be appropriate, or would that be too partisan?
Well, that raises a different question, because those are members of a different branch of the government. I don’t think it’s appropriate for members of the executive or the legislative branch of government to say to a sitting Supreme Court Justice, “I think you should retire.” I think that’s a form of judgment or etiquette largely shared by most people. But I was talking about law professors and people like that, some of whom wrote pieces saying that Justice Ginsburg should retire, and some of whom have written pieces saying that Justice Breyer should retire.
You write about Breyer, “He is the one of the great pragmatist justices ever to have sat on the Supreme Court. . . . Breyer also knows Capitol Hill, having worked there three separate times,” and you add, “What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement.” This implies that the decision is complex and requires expertise. Do you think it is?
It’s certainly a complex decision. First, you have the personal considerations that anyone has when retiring from a position that he or she has been in for a long time. Second, you have the legitimate desire on Justice Breyer’s part, or at least I believe Justice Breyer has, to insure that the Supreme Court does not appear to be a partisan institution. To retire the moment that you have a Democratic President and a Democratic-controlled Senate might, to some people, look like you were saying that the institution is in some sense partisan, and Justice Breyer strongly rejects that idea. What’s more, at a moment when many people are insisting the Supreme Court is partisan, he has been giving lectures and is in the process of writing a book trying precisely to make a point that the institution isn’t partisan. So he has a vested interest in not sending that message. Third, of course, is the pragmatic reality he understands perfectly well that, in the new political situation that we live in, a Democratic President who doesn’t control the Senate is very unlikely to get anybody through, and that raises the risk that you might have a Republican President choosing someone whose constitutional vision or legal vision is super different from Justice Breyer’s. He’s a pragmatist, and he knows that.
Could you imagine someone like Breyer making the argument that it’s inappropriate to even consider the possibility that a Republican Congress might not let a replacement through?
Justice Breyer is a highly rational person, and he’s a realist.
Yes, in the piece you say,“The liberal legal commentariat should stand back and let the master operate.”
That’s true. I believe that, but what I’m also trying to say is that, in the course of his entire body of jurisprudence, I can’t think of a single case in which he relied on a formalism that required him to ignore reality. He thinks that reality has weight in the world and one should take account of it. So I can’t imagine Justice Breyer believing that it would be entirely inappropriate for him to, in any way, take account of political reality. That’s not the kind of viewpoint that I would attribute to him. Among other things, Justice Breyer has a concern for the Supreme Court to function well. And, in a world where a Republican Senate won’t confirm any nominee put forward by Democratic Presidents, if a Justice stepped down or had to step down in that circumstance, that would leave an empty Supreme Court seat, and that would not be good for the Supreme Court’s functioning.
You wrote another column last July, in which you claimed, “The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.” That implies that Breyer needs to retire, right? If the future of the Court hinged on who was going to win the 2020 election, then it seems like whoever won should have a chance to appoint as many Justices as possible.
