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Tyler Cooper is the senior researcher at Fix the Court, a nonpartisan organization focused on increasing transparency and accountability at the U.S. Supreme Court. He wrote this for InsideSources.com.
Whether you think history repeats itself or rhymes, when it comes to the question of how a liberal octogenarian’s time at the Supreme Court should draw to a close, it certainly feels like deja vu all over again.
In 2012, President Barack Obama won reelection, and Democrats held a narrow Senate majority. The oldest liberal justice then was President Bill Clinton appointee Ruth Bader Ginsburg, age 80. This year, Joe Biden is president, and Democrats hold the Senate by the slimmest of margins. Justice Stephen Breyer, also a Clinton appointee, is 82.
We know what happened last year. Ginsburg died during the term of a Republican president, who replaced her with a staunch conservative, Amy Coney Barrett. Liberals should urge Breyer to retire immediately to avoid a similar fate.
First, the politics are clear. Though the justices themselves are quick to point out that most of their cases are decided 8-1 or 9-0, for the four or five cases per year that matter most to Americans, the party breakdown holds the vast majority of the time. With abortion, gun rights, voting rights and immigration cases wending their way through the lower courts, and red-state challenges to Biden’s ambitious legislative agenda looming, Democrats might be playing even further behind should a younger, left-leaning substitute to Breyer not be confirmed as soon as possible. The current 6-3 conservative high court majority could easily become 6-2 or 7-2, depending on Democrats’ fortunes next year and in 2024.
Breyer actually finds himself in a more politically precarious position than Ginsburg. Control of the Senate hangs on the continued good health of six Democratic senators over age 70 who hail from states where a Republican governor would fill a seat vacated due to death — and thus flip control of the chamber to the GOP.
Second, recall the rationalizations Ginsburg gave for not stepping down. “I think one should stay as long as she can do the job,” she said in 2013. A year later, she asked, “Who do you think could be nominated now that would get through the Senate that you would rather see on the court than me?”
As an avid Boston Red Sox fan, it’s likely that Breyer is familiar with WAR, or “wins above replacement,” which attempts to quantify how much value a player provides over an average, ready-for-call-up replacement player — say, a decent minor leaguer or an unsigned free agent off the street.
In a country of 330 million people, including 1.3 million lawyers, how many liberal wins above replacement, or LWAR, did a few more years of Ginsburg provide on the court, and how many would a few more years of Breyer provide? And how does that compare to the projected career CWAR of conservative Justice Barrett or the next conservative justice?
Third, if the political math or the WAR arguments don’t prevail, maybe Stephen Breyer will heed the sage words of Stephen Breyer.
It’s well known that Supreme Court justices are afforded lifetime tenure, but Breyer has himself repeatedly lent support for a shorter term of service. “I think it would be fine to have long terms, say 18 years or something like that, for a Supreme Court justice,” he said in 2019. “It would make life easier. You know, I wouldn’t have to worry about when I’m going to retire or not.”
Breyer made similar comments in 2016 and 2020. And he’s now serving in his 27th year on the court.
Finally, consider Ginsburg’s ultimate entreaty, drafted just days before her passing: “My most fervent wish is that I will not be replaced until a new president is installed.” Her request was not honored by President Donald Trump and the Senate Republicans, just as one would imagine a similar request by Justice Antonin Scalia prior to his 2016 death would not have been honored by President Obama had the Senate at the time been in Democratic hands.
And that’s as it should be. There’s no “Ginsburg seat” or “Scalia seat” to be bequeathed after the deaths of the individuals. Every seat reverts to the public, and it’s the only the public, via their elected leaders, who get to determine what becomes of a vacancy. Americans voted for Democrats in 2012 and 2020. Ginsburg erred in delaying her retirement, but Breyer can learn from that mistake.
Public service often entails personal sacrifice for the public good, and an opportunity for balance in American jurisprudence is worth a whole lot more than the twilight of Stephen Breyer’s SCOTUS career. Justice Breyer should agree.