No Country for Old Men

Now there’s a call on the left for Justice Breyer to retire.




March 14, 2014
Back in 2011 this column noted that some liberals were anxious to get rid of Justice Ruth Bader Ginsburg. Their concern wasn’t jurisprudential but actuarial: They feared that Ginsburg, then 78, might outlast President Obama but not President Romney, and they didn’t want a Republican nominating her successor.

Ginsburg, whose 81st birthday is tomorrow, is still in office, and so is Obama. This week Bloomberg View’s Jonathan Bernstein renewed the call for her departure, as well as that of Justice Stephen Breyer, now 75. (Sonia Sotomayor and Elena Kagan shouldn’t get too smug; their time will come.)

The argument now is that Republicans appear set to capture a Senate majority in November, or, as Bernstein delicately puts it, “there is simply no way of knowing whether Democrats will maintain a majority.” He adds that “there’s also no way of knowing when the next Democratic presidential victory might be.”

Ginsburg and Breyer in 2012Associated Press

In truth, everyone knows it might be in 2016, but you see his point. From a partisan standpoint, there’s a realistic prospect that this year will turn out to be Ginsburg’s and even Breyer’s last opportunity to retire while Democrats hold both the White House and a Senate majority.

“Ginsburg and Breyer might not prefer a Supreme Court that is highly partisan and ideologically divided, in which retirements are strategic moves,” Bernstein concludes. “But that’s the court they’ve got. If they care about the principles they’ve fought for, they should retire in time for confirmation battles this year.” Following his advice would be unseemly, he acknowledges, but it’s worth it. The ends justify the ends of their careers.

It’s possible that justices already have started timing their retirements strategically. Consider the seven who’ve left the bench voluntarily over the past quarter-century:

William Brennan and Thurgood Marshall, the leading liberals of the Burger and early Rehnquist courts, retired in 1990 and 1991, respectively, during the presidency of George H.W. Bush. That would not have been strategically optimal (although in Brennan’s case it worked out fine). But both justices waited out the Reagan presidency and might have been unable to wait any longer.

Byron White, a Democratic appointee, and Harry Blackmun, a liberal Republican one, waited respectively until 1993 and 1994, when a Democrat was in the White House, before retiring. (Ginsburg succeeded White and Breyer, Blackmun.)

Sandra Day O’Connor, a Republican appointee, waited until 2005, by which time there was not only a Republican president but a Republican president re-elected without the controversial involvement of the Supreme Court. David Souter and John Paul Stevens, both liberals, waited until 2009 and 2010, the first two years of the Obama presidency.

This is only a suggestive pattern, not proof that any justice, much less all of them, considered politics in the decision to retire. But note that even if one does impute political motives to the retiring justices, in every case they delayed retirement in the face of unfavorable conditions, leaving within two years after favorable ones emerged. None of them did what Bernstein urges Ginsburg and Breyer to do–a more obviously political move, especially if both make it at once–which is to hasten retirement in order to avoid unfavorable politics.

The justice who did that (at least according to some accounts) was Earl Warren, who tendered his resignation, effective on confirmation of a successor as chief justice, in June 1968. If that was a strategic move, it backfired. President Johnson nominated Justice Abe Fortas, but he was blocked by a coalition of Republicans and conservative Democrats in the Senate. Warren and Fortas both left the court in 1969, the latter in the face of conflict-of-interest accusations, so President Nixon got to appoint both justices’ replacements.

What would happen in the Senate if Ginsburg, Breyer or both retired this spring, as Bernstein advises? Unlike in 1968, the number of conservative Senate Democrats is somewhere between zero and very few, so an Obama nominee ought to be able to command a majority in a 55-45 Democratic Senate. But it could be an uncomfortable vote for those who represent heavily Republican states, especially the five of them who will face the voters in November. That’s especially true if Ginsburg and Breyer retire simultaneously, raising the appearance of concerted politicization of the court.

Believe it or not, Republicans could also stage a filibuster. Last November, Democrats exercised the “nuclear option,” depriving the minority of the ability to keep nominations from the floor in what is called a cloture vote. But the new rule–formally a reinterpretation of an existing rule–doesn’t apply to Supreme Court justices. Our understanding is that that was by order of the abortion lobby, which fears that the simple-majority rule would make it easier to confirm a nominee who would tip the court to reversal of Planned Parenthood v. Casey, the 1992 case that affirmed–or maybe we should say “kept and fixed”–Roe v. Wade.

Would the abortion people approve of the nuclear option if it were necessary to overcome a Republican Supreme Court filibuster this year? Unlike in November, there would be an immediate payoff–but the risk they feared then would remain, unless Justice Anthony Kennedy announced his retirement along with Ginsburg and Breyer. And it would be a particularly difficult trade-off if Ginsburg retired but Breyer didn’t.

Further, it’s not inconceivable that Senate Majority Leader Harry Reid would have difficulty mustering the 50 votes he’d need to invoke the nuclear option again amid the far more politically charged scenario of a strategically timed Supreme Court nomination–or two–in an election year. Three Democrats defected in November; three more would be sufficient to achieve deterrence.

This column, of course, wishes both Justices Ginsburg and Breyer continued health and prosperity. But if they decide soon to call it quits, things will get interesting–maybe more interesting than Bernstein anticipates.