Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate.
But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.
To understand Breyer’s thinking about retirement, we can begin by considering his worldview and jurisprudence — as well as his writing about the court, its function, and how it is viewed.
Breyer’s career stands as a monument to the idea of a Supreme Court justice as a wise, practical actor who strives to make the system of government work effectively and efficiently. He attended Stanford, Oxford (where he studied as a Marshall Scholar), and Harvard Law School, before clerking for Justice Arthur Goldberg, who had previously been John F. Kennedy’s secretary of labor and later became Lyndon Johnson’s ambassador to the United Nations.