Justice Breyer on retirement and the role of politics at the Supreme Court


WASHINGTON – Justice Stephen G. Breyer says he’s struggling to decide when to step down from the Supreme Court and takes into account a host of factors, including who will appoint his successor. “There are a lot of things that go into a retirement decision,” he said.

He recalled with approval something that Judge Antonin Scalia had said to him.

“He said, ‘I don’t want someone named who will overthrow everything I’ve done for the past 25 years,'” Judge Breyer said in a broad interview Thursday. “It will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there until I die – I hope not,” he said.

Justice Breyer, 83, is the oldest member of the tribunal, the oldest member of his three-member Liberal wing and the subject of a vigorous campaign by Liberals who want him to step down to ensure the President Biden can name his successor.

The judge tried to summarize the factors that would go into his decision. “There are a lot of blurry things out there, and there are a lot of considerations,” he said. “They form a whole. I’ll make a decision.

He paused, then added, “I don’t like to make decisions about myself.”

Justice visited the New York Times Washington office to discuss his new book, “The Authority of the Court and the Peril of Politics,” due out next month by Harvard University Press. This prompted questions about the expansion of the size of the tribunal, the so-called shadow case and, inevitably, its retirement plans.

The book explores the nature of the court’s authority, claiming that it is undermined by labeling judges as conservatives or liberals. Distinguishing between law and politics, Judge Breyer wrote that not all divisions within the tribunal were foreseeable, and those which were could generally be explained by differences in judicial philosophy or methods of judgment. ‘interpretation.

In the interview, he acknowledged that politicians who turned confirmation hearings into partisan brawls had a different point of view, but said the judges acted in good faith, often finding consensus and sometimes surprising the public. in important matters.

“Didn’t one of the more conservative members – I quote – join the others on the gay rights affair? he asked in the interview, referring to the majority opinion of Judge Neil M. Gorsuch last year, ruling that a landmark civil rights law protects gay and transgender workers from discrimination in the workplace .

Judge Breyer made the point more broadly in his new book. “My experience of over 30 years as a judge has shown me that anyone who takes the judicial oath takes it very seriously,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped get his appointment. “

This may suggest that judges should not consider the president’s political party they are retiring under, but Judge Breyer appeared to reject this position.

He was asked about a remark by Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a judge to take into account the president’s party or policy. in office when he decides to retire. down the courtyard.

“No, this is not inappropriate” the former chief justice replied. “Deciding when to opt out of court is not a judicial act. “

It seemed correct to Judge Breyer. “It’s true,” he said.

Progressive groups and many Democrats were furious that Senate Republicans in 2016 did not hear from Justice Merrick B. Garland, President Barack Obama’s third candidate for Supreme Court. This anger was compounded by the rushed confirmation last fall of Judge Amy Coney Barrett, President Donald J. Trump’s third candidate, just weeks after the death of Judge Ruth Bader Ginsburg and weeks before Mr. Trump does not lose his candidacy for re-election.

The Liberals urged Mr. Biden to respond with what they say was a blow: increasing the number of seats on the pitch to overcome what is now a 6-to-3 Tory majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including its expansion and the imposition of term limits on judges.

Judge Breyer said he was wary of efforts to increase the size of the tribunal, saying it could erode public confidence in it by sending the message that the tribunal is at the heart of a political institution and would lead to a race tit for tat at the bottom.

“Think twice,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it? “

Such a judicial arms race, the justice said, could undermine public confidence in the tribunal and jeopardize the rule of law. “Nobody really knows, but there is a risk, and what risk do you want to take? ” he said.

“Why do we care about the rule of law? Judge Breyer added. “Because the law is a weapon – not the only weapon – but a weapon against tyranny, autocracy, irrationality. “

Term limits were another matter, he said.

“It should be long term, because you don’t want the person there to think about their next job,” he said.

Term limits would also be a silver lining for judges who decide when to retire, he added. “It would make my life easier,” he said.

Judge Breyer said the court should rule on fewer emergency requests on his “shadow case,” in which judges often make consecutive decisions based on a brief briefing and no oral argument. Recent examples include Tuesday’s decision that the Biden administration could not immediately reverse a Trump-era immigration policy and a decision published hours after the interview overturning the moratorium on Mr Biden’s deportations.

In both cases, the three Liberal judges disagreed.

Judge Breyer said the court should ease off the gas. “I can’t say never to decide on a phantom thing,” he said. “Not ever. But be careful. And I said it in writing. I will probably say it more.

When asked if the court should give reasons for its decisions, he replied: “Right. I agree with you. Correct.”

He was in a characteristic expansive mood, but he was not eager to discuss retirement. Indeed, his editor had circulated ground rules for the interview, saying he would not answer questions about his plans. But he seemed to be trying to clarify one thing: he is a realist.

“I said there were a lot of considerations,” Justice Breyer said. “I don’t think any member of the court lives in Pluto or anything like that.”

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