WASHINGTON — Many liberals say Justice Ruth Bader Ginsburg made a terrible miscalculation in deciding, in her 80s and after bouts with cancer, not to retire under President Barack Obama. She died in September, allowing President Donald Trump to name her successor and shift the Supreme Court to the right.
Some of those same liberals are now urging Justice Stephen Breyer to step down and let President Joe Biden nominate his replacement. The justice is 82 and has been on the court for nearly 27 years. In almost any other line of work, he would be well past retirement age.
“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,” Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, wrote in The Washington Post this month.
But scholars who have studied justices’ decisions to leave the court said they had their doubts about the wisdom or effectiveness of such prodding.
“Justices don’t like to be pressured politically, and they generally don’t like law professors telling them what to do,” said Christine Kexel Chabot, who teaches at the Loyola University Chicago School of Law and is the author of a 2019 study called “Do Justices Time Their Retirements Politically?”
“A justice, like any other federal judge, would rather confess to grand larceny than to confess a political motivation,” she said.
Breyer has been particularly adamant that politics plays no role in judges’ work, and he recently suggested that it should also not figure into their decisions about when to retire.
“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
In the speech, a version of which will be published in September as a book called “The Authority of the Court and the Peril of Politics,” Breyer said that the odor of partisanship damages the judiciary.
“If the public sees judges as politicians in robes,” he said, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”
Artemus Ward, the author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court,” said Breyer might stay on to shield the court from charges of partisanship.
“Breyer is a justice who is with the chief justice in trying to protect the institution,” said Ward, a political scientist at Northern Illinois University. “Justices care about the court, and the court is arguably very vulnerable right now.”
“This is a guy who I believe is not going to retire,” he said of Breyer.
If judges were truly apolitical, they would not time their departures with politics in mind. But they do, at least on the lower federal courts, according to a new study that looked at retirements among federal judges before and after elections in which a president of a different political party gained control of the White House.
“When the presidency changes from the opposite party of the president who appointed the judge to the same party, judges are substantially more likely to retire just after the election than just before the election,” said Ross Stolzenberg, a demographer at the University of Chicago, who conducted the study with James Lindgren, a law professor at Northwestern. (The effect was somewhat stronger for judges appointed by Republican presidents.)
“I was absolutely stunned by this,” Stolzenberg said. “I guess I should be surprised that I was surprised. But I’d like to think that judges are not political.”
The Constitution grants federal judges life tenure to insulate them from politics. But it seems that politics plays a role at both the beginning and the end of their careers, not only during what has become a brutally partisan confirmation process but also in retirement decisions.
Stolzenberg said he found the second part puzzling.
“They have lifetime appointments,” he said. “What’s in it for them? They have every reason to not care about politics anymore, and they’re acting very politically.”
Still, if Breyer stays on the Supreme Court, he will not be doing anything particularly unusual.
“A lot of justices have passed up a supposedly politically opportune retirement window,” Chabot said.
“Since 1954, 16 justices have served an extended tenure of at least 18 years (and been over the general retirement threshold of age 65),” she wrote in her 2019 study. “A majority of justices in this window passed up opportunities to retire to ideologically compatible presidents.”
There were incentives to stay. “It’s an incredibly powerful and rewarding and desirable job to continue doing if you feel you are still able to do it,” she said.
Stolzenberg said that was the least of it. Staying on the court, he said, was correlated to a longer life.
“Some years ago, I published a paper in The Journal of Demography that looked at the effects of retirement by Supreme Court justices on their future longevity,” he said. “I found that the effect of retirement was about the same as smoking two packs of cigarettes a day.”
“These people love their work,” he said. “It makes them strong. It makes them happy. That’s what I think about Justice Breyer. I would guess he would rather do anything but retire.”