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The Unusual Nature of Justice Breyer’s Retirement Announcement

The Unusual Nature of Justice Breyer’s Retirement Announcement

Of the last six Justices to announce their retirement, Justice Breyer’s is the earliest in the term, by two and a half months. But more notable than that, Justice Breyer’s retirement is conditional on a successor being confirmed. This isn’t unheard of, but it is certainly outside the norm for Supreme Court nominees.

As news of Justice Breyer’s recent retirement from our nation’s highest court spread like wildfire across the nation, one peculiarity stood out that garnered very little attention—it’s open-ended condition.

Breyer in recent months repeatedly stressed that the Supreme Court is a non-political body. He also publicly opposed Democrat “court packing” plans that would turn the Supreme Court into an illegitimate political tool. Yet even at his retirement announcement Breyer seemed to acknowledge that the process to replace him would be all too political.

While some Justices pass away while still serving, such as Justices Scalia and Ginsburg, a Justice deciding to retire on his or her terms is nothing new.  And Justices doing so strategically, as Breyer has, is almost equally as common.

In May 2009, Justice David Souter announced his retirement from the Court during President Obama’s first term.  While Souter was appointed by President George W. Bush, many considered him “one of the most reliable members of the court’s liberal wing” during his time on the Court. Justice Souter famously wanted to get away from Washington D.C. and retired at the comparatively young age of 69 handing President Obama his first opportunity to nominate a Supreme Court Justice.

In April 2010, Justice John Paul Stevens almost said the quiet part out loud when he announced his retirement.  “Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court’s next Term, I shall retire from regular active service as an Associate Justice . . . effective the next day after the Court rises for the summer recess this year.”  Stevens was another Justice appointed by a Republican president, Gerald Ford, but was considered to be a part of the liberal wing of the Court by the time he retired.

When Justice Stevens announced his retirement, President Obama was in office and Democrats comfortably controlled the Senate 59-41, thereby easing any possible tensions in the confirmation process.  But the upcoming midterm elections, in November of 2010, were expected to—and indeed did—result in a Republican swing in the Senate (although Republicans did not achieve a majority). Justice Stevens did not explicitly state that he intentionally retired due to the Democratically controlled confirmation process, but the implication was evident.

And then, of course, there’s Justice Kennedy. Justice Kennedy was nominated by President Ronald Reagan in 1987, and while he rose to notoriety as the swing vote on the Roberts Court after the retirement of Justice O’Connor, he remained a fairly consistent member of the conservative wing of the Court.  Justice Kennedy announced his retirement in June 2018, paving the way for President Trump to nominate his successor.

So, in the Court’s recent history, why does Justice Breyer’s retirement stand out?

Well, for one, it’s very early.  Of the last six Justices to announce their retirement, Justice Breyer’s is the earliest in the term, by two and a half months.  Most retirement announcements seem to come when the bulk of the work for the term is concluded, and all that remains is to publish the remaining opinions—the May-July window.  But Justice Breyer’s retirement announcement in January comes when there is still a lot of work—and a lot of cases to be heard—during this Court’s term.

But more notable than that, Justice Breyer’s retirement is conditional. “I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed,” Breyer said, making this an open-ended condition.

This isn’t unheard of, but it is certainly outside the norm for Supreme Court nominees. In July 2005, Justice O’Connor announced her retirement after 24 years on the Court and conditioned her retirement on the confirmation of her successor. But O’Connor did so for a specific reason. At the time, she was well aware of Chief Justice Rehnquist’s failing health and cancer diagnosis. Indeed, after Rehnquist passed, Justice O’Connor’s foresight proved important, because she remained on the Court for months as first John Roberts, and later Samuel Alito, were nominated for her seat. This prevented what would have otherwise meant a 7-member Supreme Court.

Prior to Justice O’Connor, Justice Blackmun, when he announced his retirement in April 1994, stated that he would remain on the Court until his successor was confirmed, but in any event no later than September 24, 1994.  In essence, Justice Blackmun’s ‘condition’ was nothing more than a promise to see out the term and any emergency business that may arise over the summer recess.

Justice Breyer’s situation, on the other hand, is significantly different.  There is no ailing member of the Court, no 7-person bench to worry about. There is no end date to his condition. And yet Justice Breyer is, in effect, conditioning his retirement on President Biden nominating and the Senate successfully confirming a candidate by the end of this Court’s term.

But what happens if President Biden cannot get a nominee confirmed?  Will Justice Breyer remain on the Court in advance of another November mid-term election that early predictions indicate will result in a Republican swing in the Senate, possibly even winning the GOP a majority?  If that were the case, and a Republican majority chose to stonewall any Biden nominee, then Justice Breyer’s conditional departure could be delayed for more than two years, until either Biden is reelected in 2024 or a new president is inaugurated in January 2025.

What truly sets Justice Breyer’s retirement apart is its recognition that the confirmation process has become increasingly political. Justice O’Connor was pragmatically addressing Rehnquist’s health concerns, and Justice Blackmun was merely ensuring administrative coverage during the recess. But Justice Breyer has essentially acknowledged that there is a notable possibility that President Biden will not be able to get a Supreme Court nominee confirmed, which would then leave the Court with an 8-member bench.

And depending on how the 2022 midterms go, that 8-person bench could last for more than 2 years, based on who Biden chooses to nominate and how a Republican-controlled Senate may react.

In a recent interview with the Washington Post, Justice Breyer’s brother, Charles Breyer (a retired federal district court judge), specifically stated “I think it’s clear that politics play a role” in the Justice’s decision.  Charles went on to say: “He’s pragmatic and politics is a factor . . . that has to be considered.”

So, is Justice Breyer’s decision political, pragmatic, or both?  We’ll probably never really know.  But either way, one thing seems certain—as the judicial confirmation process has become more political, the judicial retirement system seems to be following suit.

——————–

Cody J. Wisniewski (@TheWizardofLawz) is an attorney with Mountain States Legal Foundation and Director of the Foundation’s Center to Keep and Bear Arms. He primarily focuses on Second Amendment issues but is happy so long as he is reminding the government of its enumerated powers and constitutional restrictions.

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Comments

“Here’s your hat. What’s the rush?”

    DPtarmigan in reply to fscarn. | February 9, 2022 at 8:32 am

    FTA – “Charles Breyer (a retired federal district court judge), specifically stated “I think it’s clear that politics play a role” in the Justice’s decision.”

    Duuuuhhhhhh….

    What I don’t get is what a colossal mistake this is. Unless there are shenanigans “they” need 60 votes…right?

    I do have some questions on this…

    1 – Did he leave yet?

    2 – Will the court hold court while they are @ 8?

    3 – Why is this administration so stupid or maybe this is some sort of political trap? Nahhh….

      Milhouse in reply to DPtarmigan. | February 9, 2022 at 10:27 am

      No, they only need 50 plus the VP. Remember Harry Reid abolished the filibuster for nominations.

      As for your questions, didn’t you read the post? The entire point of the post is that he is not leaving until the president and senate have agreed on a successor. He will then step down and the president can immediately appoint that person to the vacant seat.

      And the administration had little or nothing to do with this. It was Breyer’s decision, but someone in the administration leaked it.

Brandon’s administration hasn’t followed any law or precident yet, why would anyone think he would now?

My guess is the good associate justice was presented with his walking papers against his will, or perhaps have to meet with Hillary on a dark road in Arkansas.

There is an epidemic of corruption and treason at the highest levels of our government. There is no ‘normal’ anymore.

Biden is in the pocket of Red China. That’s BECOMING normal.

In that picture it looks like Brandon is asking him for directions out of that place? I listened to Breyer speaking about that time and he is far & away more lucent than bumbling & fumbling Joe.

I’ve heard that his retirement plans were leaked. I would imagine that they wanted to force him to announce early so they could maybe get him in before the shellacking they are going to get in November.

Wouldn’t it be hilarious if nominations got deadlocked in the Senate until the White House switched hands… for eight years? The man would have essentially lame ducked himself for ten years, because he won’t dare resign. He’ll be lucky if they pass opinions by him just for his signature. And if the coof gets him in the meanwhile, he’ll have RBG’ed himself with a vengeance.

    The_Mew_Cat in reply to henrybowman. | February 9, 2022 at 7:21 am

    It would also be funny if Dementia Joe nominates someone who can’t be confirmed by the current Senate but revvs up his base for the Midterms, and then has to pick a more mainstream pick in the lame duck session.

    It would also be funny if his pick is confirmed and then both Sotomayor and a Dem Senator from a State with a GOP Governor dies from COVID, so the newly confirmed pick replaces Sotomayor instead of Breyer, and Breyer has to stay for another year at least.

I’m betting it’s no fun being a leftist minority and having little or no chance of getting back in power again. Couple of observations:
-I’ll bet he didn’t want his announcement to get out this early, but the current administration is about as leaky as a fifty year old garden hose. That’s gotta irk him.
-There’s no chance that he will *not* retire without hinting and hmmming and coughing gently to urge a particular successor. Likewise, there’s not a chance that the current administration will pay him a dime’s worth of attention. They’ve already selected her and are just filtering through social media posts for dirt.
-His replacement will be about as hard left as Stalin, and absolutely a stone cold vote for every single element of the Left’s agenda, from gun control to abortion on demand. She will not ‘moderate’ in office, and she will be invited to the best parties. No matter what awkward words come forth from her mouth in the present or the past, the media will sing hosannas to her slim credentials and her wisdom, portrayed as such a genius that no mortal minds can understand her brilliance. And, of course, any Republican who dares vote against her shall be called a racist forevermore.

I’m honestly not sure what he’s worried about.

Grahamnesty has never met an insane leftist judge he wouldn’t vote for, and I’m sure Pierre Delecto will have no problem ‘reaching across the aisle’.

Immediately they can get a nice rock solid younger SJW jurist, letting life take its course is a unknown.

Souter was appointed by HW.

1). Breyer was the LAST TO KNOW that he was retiring.

2). The “Supreme Court’ (and all that implies) was the worst (only?) mistake The Founders made.

    DPtarmigan in reply to Sternverbs. | February 9, 2022 at 10:00 am

    ??? Some sort of body of government has to adjudicate legal disputes.

      mailman in reply to DPtarmigan. | February 10, 2022 at 8:29 am

      There does need to be a final word though. Without the Supreme Court things would just go on for ever.

      The problem isnt the court but the politics that is being enacted via the court since they no longer consider the Constitution as their guiding light.

3). F J B

This part of the article got me really confused: “… after Rehnquist passed, Justice O’Connor … remained on the Court for months as first John Roberts, and later Samuel Alito, were nominated for her seat.”
So both of these characters were proposed for O’Connor’s seat? That’s worrisome, for an outfit that’s supposed to keep things organized. Or did she have an extra-wide seat?

    RRRR in reply to Wim. | February 9, 2022 at 9:59 am

    The President first nominated John Roberts to replace Justice O’Connor. Before action was taken on that, Chief Justice Rehnquist died, and the President then nominated Roberts for CJ. Then the President nominated Harriett Miers to replace O’Connor; that went nowhere, so he nominated Sam Alito, who was confirmed.

      Eagle1 in reply to RRRR. | February 9, 2022 at 12:33 pm

      The Administration had already done all of the vetting for Roberts, so it was an easy move. IIRC, there were a few cases that had to be re-argued in the spring due to an initial 4-4 split by O’Connor having heard the case, but not being on the court to sign the opinion.

Imagine this scenario. Biden appoints a nominee and the Senate confirms. The nominee is now appointed to the court. Then Breyer does not retire. I don’t like this conditional retirement thing. It seems shady and I think the possibility of this being a ploy like so many other political machinations by the Democrats should be considered. I don’t believe anything they say and I don’t trust that he will retire when a new member is confirmed. Let’s say this scenario plays out and then Thomas passes away. Then if Breyer has not retired then the argument can be made that we now have 9 justices and Thomas should not be replaced. We would then have 5 liberal justices (with Roberts) and 4 conservative.

    Milhouse in reply to vonbeck2. | February 9, 2022 at 7:49 pm

    Imagine this scenario. Biden appoints a nominee and the Senate confirms. The nominee is now appointed to the court. Then Breyer does not retire.

    Biden can’t appoint the nominee if there is no vacant seat to appoint him to.

    Now it can happen that after the senate consents to the nominee another seat opens up, so Biden appoints her to that seat, and then Breyer decides to stay. The associate justice seats are not labeled, they’re all associate justices, so once the senate has consented to someone being appointed to that office the president can do so regardless of whose departure created the vacancy. Of course the senate could vote to withdraw its consent, but it would have to do so quickly, and of course the Dem senators would all vote against it, so it couldn’t pass.

2smartforlibs | February 9, 2022 at 1:55 pm

I find it interesting how they can’t wait to get him out but they wanted Ruth Buzzi Gensburg to serve even after her death.

    Milhouse in reply to 2smartforlibs. | February 9, 2022 at 7:54 pm

    Nope. They wanted Ginsburg to retire while 0bama was president. She refused, convinced that Clinton would be appointing her replacement, and when that didn’t work out they were very angry at her. Her death during Trump’s term was paraded as an example of what happens when justices don’t sensibly retire when there’s a D president, and once Biden was in they demanded that Breyer take heed and not repeat her mistake.

    donewiththis in reply to 2smartforlibs. | February 9, 2022 at 10:26 pm

    Does make you wonder if this is just all filthy politics, or? And if so, why not declare political war on the leftist political enemies of the United States???

Alternately, Breyer’s condition of a new Justice nominated and confirmed is a ploy to have 10 confirmed Justices. Then he declines to retire, and the Left pushes that 10 confirmed Justices means 10 Justices to be seated, and – BANG! – they will have expanded the Court without bothering to go through the Legislature.

Do you think the Left wouldn’t try this? Do you think the GOP has the stomach / will / brains to stop it?

    Milhouse in reply to ss396. | February 9, 2022 at 7:57 pm

    That is not possible. The number of associate justices is fixed by law at eight. The president can’t appoint a ninth associate justice unless Congress changes the law, which ain’t happening. There’s nothing for the GOP to stop; all they have to do is sit on their hands and not change the law.

While Souter was appointed by President George W. Bush
Ummm, no he was NOT. He was appointed by President George H. W, Bush.

another Justice appointed by a Republican president… considered to be a part of the liberal wing of the Court
Because he was appointed by a Progressive. Republican =/= Conservative.
The vast majority of Republican appointees in the modern age were appointed by progressives.

a Republican swing in the Senate, possibly even winning the GOP a majority?
Ummm, math says if there is a swing in this case, it guarantees a majority.

Breyer is pissed. They ran with his retirement before he was even able to make his own announcement. make a conditional is the only way he can hold into his dignity.

Biden’s plan to carry the midterms and sweep his way to 2024 victory is to nominate to most radical left wing black woman he can find, and then have the media trumpet how racist the republicans are when they oppose her.

When was the last time anyone was nominated and confirmed for a non-existent Supreme Court vacancy? Or any other vacancy requiring Senate confirmation?

Or nominated with extortionary conditions…. “if it doesn’t go our way forget it”.

If the Reps were attempting this all hell would be letting loose.

    Milhouse in reply to Gosport. | February 10, 2022 at 10:25 am

    I don’t know when the last time was, but it definitely happened in 2006. It’s probably happened more recently, with administrative positions, but I don’t specifically recall them.

    It’s not the usual procedure, but there’s absolutely nothing wrong with it and in the circumstances it makes sense.

I can see why Democrats want to get this done now. They are minutes away from losing control of Congress and the Senate cant be far behind after that.

So yeah, they get Stevo’s replacement lined up and confirmed which then takes the heat of Democrats because it would actually be the end of the world having an actual Conservative Justice put in his place as that will then make things very difficult for Democrats to use the courts to enact their policies without Congress and the Senate.

The Law says the President may nominate, with advice and consent of the Senate, upon a vacancy or death.
Until he retires,there is no vacancy to give the President the legal authority to make a nomination. I know its been done in the past, but just because the Constitution and law has been violated before, doesnt make it legal.