Comment: Justice Breyer should do what Ginsburg didn’t; retire

To give Biden the best shot at appointing a justice, Breyer should learn from his colleague’s error.

By Erwin Chemerinsky / Special to The Washington Post

Justice Stephen Breyer, who turns 83 this year, is a Supreme Court stalwart who likely could continue to serve on the Supreme Court with distinction for many years.

But if he doesn’t want to risk having his seat go to someone with an opposing judicial philosophy — which just happened to the late Justice Ruth Bader Ginsburg — and if he wants to give President Biden the best opportunity to choose a successor who shares his values, Breyer should step down as soon as possible.

Ginsburg was a legal titan with a mind that remained keen until the end of her life. Nevertheless, in 2014, when she turned 81, I joined others who were imploring her to retire from the bench. As I wrote then, she had the opportunity to “ensure that a Democratic president will be able to choose a successor who shares her views and values,” lest the influence of her voice and her vote on issues ranging from “environmental law, health care, same-sex marriage, the death penalty and the rights of those in Guantánamo” be diminished “if a conservative takes her seat.”

I worried that Republicans would take control of the Senate that year (they did) and that it was impossible at that time to predict what would happen in the 2016 presidential election (in hindsight, an understatement). Before the 2014 midterm elections, the Senate had a Democratic majority, and had Ginsburg retired at that time, whomever President Barack Obama — who had already tripled the number of women then serving on the Supreme Court — nominated to succeed her almost certainly would have been confirmed. Obama never got the chance.

Ginsburg made clear she was in good health, believed no one could be as effective as she could in advancing her constitutional vision and had no intention to step down. Though none was intended, she and many others took offense at the suggestion. Indeed, as a scholar who still considers her a role model, calling on Ginsburg to retire gave me no satisfaction. But she was gambling that she would be able to leave the bench with a Democratic president in office. Instead, President Trump picked her successor, selecting someone from the opposite end of the ideological spectrum, Justice Amy Coney Barrett.

It’s a decision that will resonate for decades: Barrett was 48 when she was confirmed. If she remains on the Court until she is 87, the age at which Ginsburg died, Barrett will sit on the court until 2059. On issues ranging from voting rights to reproductive choice to the power of corporations, Barrett will impact American jurisprudence for decades. Like Antonin Scalia, the justice for whom she once clerked, Barrett is an originalist whom we can expect to be a foe of abortion rights; a skeptic, if not an outright opponent of LGBTQ rights; and a consistent vote for an unduly permissive interpretation of the Second Amendment.

Since 1961, we’ve had 32 years of Republican presidents and 28 with Democratic presidents, but those Republicans have appointed 15 justices and the Democrats just eight. If Breyer is followed by a justice in Barrett’s mold, the Supreme Court’s ideological balance would be further skewed.

It’s a difficult choice, of course, to step down from one of the most revered and consequential positions in our constitutional system; particularly for someone still capable of doing the job superbly, as Breyer is. But there are also times when the stewards of our system must put the good of an institution they love, and of the country they love, above their own interests. They have to recognize that no one, not even a brilliant justice, is irreplaceable, and that the risks presented by remaining are more than hypothetical.

After Scalia died in 2016, a Republican-controlled Senate refused, for almost a year, to consider Obama’s Supreme Court nomination of Judge Merrick Garland, waiting out the remainder of Obama’s term and abdicating its advice and consent function for partisan gain. Before Ginsburg died last year, weeks before Election Day, she relayed that “my most fervent wish is that I will not be replaced until a new president is installed.” But the Senate confirmed Trump’s nominee, Barrett, less than six weeks after Ginsburg’s death. Biden will be president for four years, but there’s no guarantee that in the next Congress — less than two years away — his party will maintain the slim Senate majority it now has and will need to confirm his nominees.

Breyer shouldn’t even wait for the 2022 midterms to retire. With a 50-50 Senate, anything is possible: Something could happen to a Democratic Senator in a state with a Republican governor, who would then pick the replacement and throw the majority back to Republicans.

And though a Biden-appointed replacement wouldn’t flip the high court’s majority to its liberals — it would only maintain the status quo — Breyer shouldn’t overlook the difference that his seat makes: When Ginsburg was on the court and there were four liberals, they only needed to attract one conservative vote to gain a majority in a case; now they need two. If the court otherwise retains its current composition and Breyer winds up being replaced by a conservative, the two remaining liberals, Justices Sonia Sotomayor and Elena Kagan would face the daunting and usually impossible task of persuading three conservatives to join them.

Some suggest that a justice retiring in this way would be inappropriately partisan. But partisanship is how we got here: Everyone knows that a justice’s legal philosophy matters enormously in the way cases are decided. Republicans blocked Garland’s confirmation and fast-tracked Barrett’s precisely because they wanted conservative justices in their seats. Though he can’t predict the future, Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook.

Not everyone agrees: Sen. Dianne Feinstein, D-Calif., who turns 88 next month, said Thursday that a Breyer retirement would be a “great loss.” “My general belief,” she said, is “if a person is serving with integrity and working hard and producing for whatever the constituency is, that’s what these jobs are all about.”

She’s right that whenever Breyer’s tenure ends, it will be a great loss for the court and the nation. He is the author of major opinions protecting abortion rights, calling for an end to the death penalty and urging empowering the government with the ability to end de facto school segregation. He has a pragmatic approach to judging that looks more to real-world effects than abstract ideology. And there is no dispute that he is serving with integrity and dedication.

His successor could accomplish all of those things, too. And the person in the best position to ensure that is Breyer himself.

Erwin Chemerinsky is dean and Jesse H. Choper distinguished professor at the University of California, Berkeley School of Law.

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