Justice Stephen Breyer has recently made it pretty clear that he does not intend to retire strategically, so that President Biden may appoint his successor while Democrats still hold a slim majority in the Senate, much to the dismay of many liberal academics and other observers (including me). He has found at least one ally, however, in Emory Law School’s Prof. Michael Broyde, whose recent oped on CNN.com is titled “Stay on the Job, Justice Breyer.” Broyde’s case is far from persuasive.
Broyde begins his argument for indefinitely extended SCOTUS tenure by arguing at length that even an 18-year term limit, as proposed by scholars including my colleague Steven Calabresi, is a bad idea. He gives multiple reasons. First, and “most importantly,” he says,
[M]any justices have had landmark accomplishments far after the 18-year mark -- Justice Breyer included. In office since 1994, Justice Breyer has grown only more eloquent and thoughtful with better opinions and more thoughtful views. The nation would be judicially impoverished if he had stepped aside in 2012.
This is truly a non-reason for objecting to term limits. For every justice whose work improved late in their tenure, there were others whose contributions deteriorated. William O. Douglas (36 years) and Thurgood Marshall (24 years) come to mind. Roger Taney wrote the Dred Scott decision in the twenty-first year of his tenure, while Benjamin Curtis dissented in only his sixth (and final) year on SCOTUS. I am willing to bet that there is no discernable difference in the quality of a justice’s opinions (by whatever metric) pre- and post- their eighteenth anniversary on the Court.
And in any case, there is no way of knowing whether, as Broyde puts it, “the nation would be judicially impoverished if [Breyer] had stepped aside in 2012.” He would have been replaced, after all, by an Obama appointee who would have been confirmed by a Democratic Senate. Obama’s other appointees – Justices Sotomayor and Kagan – look pretty impressive to me.
Broyde’s other reasons relate to the hypothetical ex-justices’ presumed activities post-retirement, expressing his disdain for their possible employment at law firms:
[H]aving a cadre of youthfully retired Supreme Court justices as partners in law firms is itself deeply problematic: they provide insider access in complex ways -- everyone would have liked to hire former Justice Breyer to handle their Supreme Court case.
It is far from obvious, however, that the future cadre of retired justices would be youthful. The elimination of life tenure would also remove the incentive to appoint relatively young justices with the expectation that they would serve for thirty years or longer. Many would likely see an 18 year SCOTUS term as the capstone of a long career. Some retired justices might choose to serve by designation on circuit courts, as diddoes Justice Souter. And of course, the only relatively recent precedent for a justice returning to law practice was Arthur Goldberg, whose SCOTUS advocacy was more or less a disaster.
Turning to his main subject, Broyde’s argument boils down to uncertainty:
Who might actually be confirmed to replace Justice Breyer if he resigns right now is hard to know. Whomever the President nominates would have to attract the vote of every single Democrat in the Senate -- from Sen. Bernie Sanders to Sen. Joe Manchin -- to be confirmed along party lines with the Vice President breaking the tie. It is possible that no person would be confirmed for a while with all the problems that might produce on the Court with only eight justices, six of whom have been appointed by Republican presidents.
Seriously? No president since Lyndon Johnson has been more familiar with the Senate than Joe Biden, who served in that body for 36 years, and presided over it for another eight years as vice president. If there is one thing Joe Biden knows well, it is how to whip Senate votes. There is precisely zero chance that Biden would fail to vet his SCOTUS nominee with both Manchin and Sanders -- and perhaps Collins, Romney, and Murkowski -- before going public (which he is probably already doing, just in case).
In the wholly improbably event of such a stalemate, Broyde fears that “no person would be confirmed for a while with all the problems that might produce on the Court with only eight justices, six of whom have been appointed by Republican presidents.” But that is also a non-problem, as Breyer could simply make his retirement effective upon the confirmation of his successor, as did Justice O’Connor.
In conclusion, Broyde says,
There is no reason for Justice Breyer to resign, and there are good reasons for him to continue doing the excellent job he is doing. Live long and prosper, Justice Breyer!
I certainly agree with the last sentiment, but I would like it to be somewhere other than the Supreme Court bench (physical or virtual).
First, Prof. Lubet arguing that another person is too long in tenure and should resign is, well, sort of unseemly. Sure, he wants to manipulate the court because he believes that everyone is an ideologue (projection). But, the truth may not be a clearly an "us" v. "them" proposition as he supposes.
Second, Prof. Lubet describes himself as a "liberal." the definition: "1. willing to respect or accept behavior or opinions different from one's own; open to new ideas.
2. relating to or denoting a political and social philosophy that promotes individual rights, civil liberties, democracy, and free enterprise."
There is no way that an authoritarian, doctrinaire leftist can claim to be "liberal."
Posted by: anon | May 24, 2021 at 03:15 PM