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Justice Stephen Breyer should retire from the Supreme Court

He doesn't believe in court-packing? Or see his conservative colleagues' partisanship? Seriously?
Image: Stephen Breyer
At 82, Stephen Breyer is the oldest justice still on the Supreme Court.J. Scott Applewhite / AP file

UPDATE (Jan. 26, 2022, 12:15 p.m. ET): Supreme Court Justice Stephen Breyer will retire from the court at the end of the current term, clearing the way for President Joe Biden to name his replacement.

He is one of the most powerful people in the United States. Yet few Americans could name him; even fewer could pick him out of a line-up.

On Tuesday, Stephen Breyer, an associate justice of the Supreme Court since 1994, gave a rare public lecture at Harvard Law School, warning that the authority of the highest court in the land depended on "a trust that the court is guided by legal principle, not politics."

Breyer is one of three liberal justices left on the court after President Donald Trump filled three vacancies in four years and gave the court a 6-3 hard-right majority. The aim of his address — named in honor of his late conservative colleague Justice Antonin Scalia — was to "make those whose initial instincts may favor important structural change or other similar institutional change, such as forms of 'court-packing,' think long and hard before they embody those changes in law."

"If the public sees judges as politicians in robes," Breyer argued, "its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a check on other branches."

Seriously? It's hard to pick which words in that statement I find the most naive, misguided and self-serving. To Breyer's remarks, I have three responses.

First, where on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping? Sen. Sheldon Whitehouse, D-R.I., a member of the Judiciary Committee, has tallied "80 5-4 partisan decisions by Republican Justices giving victories to big Republican donor interests" in the 15 years since Chief Justice John Roberts was sworn in in 2005. Does Breyer really believe these rulings — in which he dissented! — were all guided by "legal principle, not politics"?

How about Bush v. Gore in 2000, when the Supreme Court handed a presidential election to a Republican candidate who lost the popular vote and benefited from massive voter suppression in Florida? Or Citizens United v. FEC in 2010, which granted corporations unlimited political spending power in election campaigns, a longtime goal of Republicans like Senate Minority Leader Mitch McConnell? Or 2013's Shelby County v. Holder, which gutted the Voting Rights Act of 1965, the aftershocks of which we're still dealing with today? Does Breyer expect us to believe that the conservative justices who delivered these rulings, which taken together helped rig elections in favor of the GOP, can possibly not be seen as "politicians in robes" for these decisions?

As for "confidence" in the Supreme Court, how about the fact that a majority of the nine justices were appointed by presidents who lost the popular vote? Or that one of those five, Neil Gorsuch, is sitting in a blatantly stolen seat? Or that two of the nine justices, Brett Kavanaugh and Clarence Thomas, have been credibly accused of sexual misconduct?

Today, a majority of Americans still approve of the Supreme Court, but it is worth noting that the proportion saying they disapprove has jumped from 29 percent to 43 percent over the past 20 years.

Second, Breyer wants his fellow liberals to "think long and hard" before expanding, or "packing," the court, or, as he puts it, "structural alteration motivated by the perception of political influence." But why did he not say this to conservatives in 2016? When Republicans led by McConnell, R-Ky., reduced the Supreme Court from nine to eight justices for 14 months — between Scalia's death and Gorsuch's confirmation — did that not count as "structural alteration"? How else to describe the refusal to even consider President Barack Obama's nominee for the vacant seat? Or Republican Sen. Ted Cruz's suggestion in October 2016 to keep the court at fewer than nine justices for four more years if Hillary Clinton won the presidential election?

It feels odd for me to have to remind a sitting justice that nowhere in the Constitution does it say there should be nine justices on the court. The court's own website says, "The Constitution places the power to determine the number of Justices in the hands of Congress." In fact, if Biden does eventually yield to pressure from liberal activists and Democratic lawmakers and decides to change the size of the court, backed by a congressional majority, he will be following in the footsteps of five previous presidents — history-makers like John Adams, Thomas Jefferson, Andrew Jackson, Abraham Lincoln, Ulysses S. Grant.

Third, Breyer is 82 years old. He has been the oldest member of the court since Ruth Bader Ginsburg died at 87 in September. These days, RBG is seen as a nearly infallible, almost saintly figure, but it is worth recalling that in 2013 there were multiple calls for her to retire to allow Obama and a Democratic-led Senate to replace her. She refused — and, well, the rest is history.

Today, Breyer faces similar calls to stand down to allow Biden and a Democratic-led Senate to replace him. Writing in The New York Times in March, Paul Campos, a law professor at the University of Colorado, argued that Breyer "should announce his retirement immediately, effective upon the confirmation of his successor."

"For him to continue to make the same gamble that Justice Ginsburg made and lost runs the risk of tainting his legacy as a justice and has the potential to be an anti-democratic disaster for the nation as a whole," Campos wrote.

Yet, as The Washington Post noted, "Breyer gave no hint in his speech about whether he is considering stepping down."

This, to quote Campos, is a "grave mistake." Politics aside, if Breyer is truly concerned about the Supreme Court's losing the trust and confidence of the people, what does he think a 7-2 conservative-led court, delivering partisan decision after partisan decision, out of step with public opinion, will look like to the average American? What confidence will it command? What credibility will it have?

So ... if you've need of a hanger for your robe, Mr. Justice, do let me know.