Liberals Who Don’t Retire – The New York Times
For conservative Supreme Court justices, 80 is indeed the retirement age.
After Anthony Kennedy turned 80, he resigned at the first opportune moment – in 2018, when a Republican was in the White House and the court wasn’t already welcoming a first-year judge. Warren Burger and Lewis Powell both retired at 79, during Ronald Reagan’s second term. Sandra Day O’Connor left court at age 75, under President George W. Bush.
To put the model in its harshest terms, no modern conservative justice has lost the chance to be replaced by a Republican president after turning 80. That’s part of the reason Democratic presidents have so rarely had the chance to overturn a seat in court: Tory judges are trying not to let that happen.
Several Liberal judges have taken a different approach. John Paul Stevens could have retired at age 80 under President Bill Clinton, but he did not. Ruth Bader Ginsburg, diagnosed with cancer, could have retired at age 81 under President Barack Obama, but did not. And Stephen Breyer, now 82, could have announced his retirement this summer, with Joe Biden in the White House and Democrats tightly controlling the Senate, but Breyer did not.
There is no explanation for the model. It involves so few people that it may in part be a coincidence. Whatever the reasons, however, it has huge consequences for the country.
Personal vs Politics
Aging Liberal judges have essentially placed a higher priority on their own personal interests than on their judicial ideals. And you can understand why a judge would hesitate to leave the job. Many enjoy the job – the camaraderie of the court, the attention they receive, the power they wield. Retirement, by comparison, can seem small and boring.
Perhaps that is why some judges have offered questionable justifications for staying on the pitch. Breyer argued that courts are not political (a position at odds with vast amounts of evidence). Ginsburg claimed that Obama could not have secured confirmation from an equally liberal candidate (even though he had previously appointed Sonia Sotomayor, who is more liberal than Ginsburg through joint action).
In these statements, you can almost hear the judges trying to convince themselves that staying on the court – perhaps until death – is okay with them. But it is clearly the case.
Ginsburg seemed to grasp this at the end of his life. His last wish was “that I will not be replaced until a new president is installed”. But it was too late. She had refused to let a Democratic president replace her when she had the chance, and instead Donald Trump chose deeply conservative Amy Coney Barrett.
In the years to come, Ginsburg’s decision could cost millions of American women access to abortion – as well as shaping policy on voting rights, climate change, gun control, religion and other matters. If Breyer is ultimately replaced by a Republican president, the court would move even further to the right.
Conservative judges have focused less on personal preferences when planning for retirement. Their attitude was based more on realpolitik and political principle. One possibility is that they were influenced by the cohesive conservative legal movement of recent decades, embodied by the Federalist Society. Conservative judges are more likely to act as if they are part of something bigger.
Different attitudes towards retirement are not the only reason the Conservatives dominate the court today. The refusal of Senate Republicans to let Obama replace Antonin Scalia, after Scalia’s unexpected death at age 79, also played a big role. The same goes for the pro-Republican bias of the Electoral College and the Senate.
But it is important that Liberal judges care less than their Conservative colleagues about who replaces them. The only five judges to have celebrated their 83rd birthday on the bench in recent decades have been Liberals. On August 15, Breyer is expected to become the sixth.
Breyer could retire next year, ahead of the midterm elections. But Democrats’ control in the Senate is so tight that even the death or absence of a single senator could prevent them from confirming a replacement – given the Republican filibuster.
Judges must be “loyal to the rule of law, not to the political party that helped secure their appointment,” Breyer argued in a recent speech. Otherwise, they undermine public confidence in the law, he said.
Some have praised Breyer’s decision: “The stronger the calls for retirement, the harder he can resist,” wrote the Wall Street Journal’s Kimberley Strassel.
Others say Breyer is naive: “For him, continuing to make the same bet Justice Ginsburg made and lost runs the risk of sullying his legacy as justice and has the potential to be an anti-democratic disaster.” Paul Campos, a law professor, argued in The Times.
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