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.
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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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