Perspectives: Is it time for a 'Supreme' retirement?

FILE - In this Oct. 4, 2018, file photo, the U.S. Supreme Court is seen at sunset in Washington. The Supreme Court is siding with Google in an $8 billion copyright dispute with Oracle. The justices sided with Google 6-2 on April 5, 2021. The case has to do with Google's creation of the Android operating system now used on the vast majority of smartphones worldwide. (AP Photo/Manuel Balce Ceneta, File)
FILE - In this Oct. 4, 2018, file photo, the U.S. Supreme Court is seen at sunset in Washington. The Supreme Court is siding with Google in an $8 billion copyright dispute with Oracle. The justices sided with Google 6-2 on April 5, 2021. The case has to do with Google's creation of the Android operating system now used on the vast majority of smartphones worldwide. (AP Photo/Manuel Balce Ceneta, File)

YES: Political realities, balance of power on the court are in play

By Tyler Cooper

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 re-election, 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 before 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 Supreme Court career. Justice Breyer should agree.

photo Tyler Cooper

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.

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NO: We shouldn't care when Justice Breyer retires

By Ilya Shapiro

Even before our oldest serving president was inaugurated, a progressive chorus began calling for our oldest sitting justice to retire. Pundits and professors argue that 82-year-old Justice Stephen Breyer should step down to guarantee that President Joe Biden names his successor. They raise the object lesson of Justice Ruth Bader Ginsburg, who had declined such entreaties - thinking it more likely that the Democrats would keep the White House than that President Barack Obama could get anyone worthwhile confirmed - and lost her political bet with the actuarial tables.

There's something unseemly here. Why should so much turn on the health or retirement of senescent public officials? Well, what the Supreme Court does matters - and those decisions increasingly turn on the party of the president who nominated justice.

At a time when the parties are more ideologically sorted and polarized than at least the Civil War, different approaches to legal interpretation line up with partisan preferences. It's a relatively new phenomenon, but for the foreseeable future, every Supreme Court vacancy is an opportunity to either prolong one party's control of a particular seat or "flip" it.

That political dynamic is all the more important because it comes at the culmination of decades of the court's self-corruption, aiding and abetting the expansion of federal power, and then the shifting of that power away from the people's representatives and toward executive agencies. As the courts play more of a role in the political process, of course the judicial nomination process is going to be more fraught with partisan considerations.

Moreover, filling each vacancy is a bigger deal because justices now serve longer. In the late 1700s, when life expectancy was under 40, the average age of a Supreme Court nominee was about 50. Now, with life expectancy just under 80 - more than that for those who are already in late middle age - nominees' average age is still not much above 50. Since 1972, only one of 17 justices was over 55 at confirmation, Ginsburg.

To put it another way, before 1970, the average tenure of a Supreme Court justice was less than 15 years. Since then, it's been more than 25. The life expectancy of confirmed justices has grown from about eight years at the beginning of the republic to 25-30 today. Justices appointed at or before age 50, like John Roberts, Elena Kagan, Neil Gorsuch and Amy Coney Barrett, are likely to serve 35 years, projecting the legal-policy effect of presidents George W. Bush, Barack Obama and Donald Trump, respectively, as far into the future as Antonin Scalia and Anthony Kennedy did for President Ronald Reagan. Clarence Thomas, who was 43 when he joined the court and this fall will mark 30 years, could serve another decade!

In that light, modern confirmation battles are all a logical response to political incentives given judges' novel expansive role. Term limits might forestall morbid health watches over octogenarian justices, but they won't fix the underlying problem. When judges act as super-legislators, the media and the public want to scrutinize their ideology.

As Sen. Ben Sasse, R-Nebraska, described the dynamic in his opening remarks at Brett Kavanaugh's hearings, Congress doesn't complete its work so it can pass the political buck to a faceless bureaucracy, and to a judiciary that ultimately has to evaluate if what these alphabet agencies come up with is within spitting distance of what the Constitution allows. What's supposed to be the most democratically accountable branch has been punting its duties and avoiding hard choices since long before the current polarization.

Gridlock is a feature of a legislative process that's meant to be hard by design, but compounded of late by citizens of all political views being fed up with a situation where nothing changes regardless of which party is elected. Washington has become a perpetual-motion machine - and the courts are the only actors able to throw in an occasional monkey wrench.

That's why people are concerned about the views of judicial nominees, and why there are more protests outside the Supreme Court than Congress. Only when we fix that dynamic, when the court returns power back to the states and the people, and forces Congress to legislate on the remaining truly national issues, will we stop debating whether and when justices should retire.

photo Ilya Shapiro

Ilya Shapiro is director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute, and author of "Supreme Disorder: Judicial Nominations and the Politics of America's Highest Court." He wrote this for InsideSources.com.

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photo Tyler Cooper

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