Will Stephen Breyer retire this summer?

[politicallefty]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

[brucejoel99]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

Hadn't that literally been the general presumption in the event that Rehnquist had retired or passed away before O'Connor announced her retirement first? Scalia might not have had the 'temperament' required to be Chief, but Rehnquist hadn't really had it either prior to his own elevation; he just knew how to the job after having watched Burger bumble & fail at it for 14 years, & everybody on the Court - Scalia included - valued Rehnquist's effectiveness & ability to lead. Even with his temperament, I don't really see a Chief Justice Scalia diverging too far off from that, let alone wildly so. Also, don't let it be forgotten that Scalia was a Cheney guy through-&-through at the end of the day. That'd have to count for something too.

And as for Breyer, the only guy who could have a conversation with him & actually persuade him to willingly step down this year even if he'd rather wait it out one more year longer passed away at a compound in Hyannis Port on Aug. 25th, 2009.

[Amenhotep Bakari-Sellers]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

Why would Clinton talk to him, judges make their own decisions, Ginnsberg stayed on due to fact she thought Hillary would be Elected and she would be on a 5/4 Crt and legalize SSM

Breyer isn't retiring and Biden is gonna get reelected anyways on the 2024 Sen map Stabenow, Baldwin and Casey secures the Rust belt

Even if D's lose the Sen, which they wont, more likely the H, a replacement will be confirmed. Not in 2027, but before the 2026 Election

[○∙◄☻¥tπ[╪AV┼cVê└]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

Rehnquist was by far the most right-wing member of the court when he was elevated to chief justice.

[brucejoel99]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

Rehnquist was by far the most right-wing member of the court when he was elevated to chief justice.

And 'Associate Justice Rehnquist' of the early-'70s was just as combative as Scalia would later be infamously remembered for, relative to their respective tenures. He really only became totally mild-mannered & chill upon said elevation to Chief.

[Skill and Chance]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

I agree Roberts hanging it up soon is a very underrated possibility.  If it happened within the next 2 years, I guess we would get Chief Justice Kagan?  Also worth noting that a Roberts retirement, even under Biden, would probably push jurisprudence to the right.  Roberts has been leaning on Kavanaugh (and occasionally even Barrett) with some success.  If he's gone and the new CJ is a liberal who is going to dissent anyway, it will be Thomas and Alito leaning on Kav going forward. 

[brucejoel99]

Honestly, of all of the current justices, I'd bet on Roberts being the next to retire.

He just seems fed up with trying maintain the peace on the court.

I actually wouldn't rule out the possibility of Roberts retiring under a Democratic President. I remember when the left feared the possibility of a Chief Justice Scalia. That wasn't really a realistic scenario. Justice Scalia really did not have the temperament to make a good Chief Justice.

As for Justice Breyer, maybe Bill Clinton needs to talk to him as to the severity of the current crisis in our democracy. A 7-2 conservative majority would be unstoppable.

I agree Roberts hanging it up soon is a very underrated possibility.  If it happened within the next 2 years, I guess we would get Chief Justice Kagan?  Also worth noting that a Roberts retirement, even under Biden, would probably push jurisprudence to the right.  Roberts has been leaning on Kavanaugh and Barrett with some success.  If he's gone and the new CJ is a liberal who is going to dissent anyway, it will be Thomas and Alito leaning on Kav going forward. 

Depends on how hard a Chief Justice Kagan would be able to lean on her coalition-building skills vis-a-vis Kavanaugh.

[Blair]

Some thoughts.

1.) They'd be a lot of pressure for Biden to pick a young chief Justice if Roberts fell under a bus.

2.) Breyer is going to retire when he's going to retire- I don't think billboards work and I don't think there's any elected official who can convince him. He knows the stakes, he knows the political reality & he knows what losing his seat would mean- but he can easily argue that he's got another year at the least.

3.) I think a lot of the rather morbid aspects of the court & the court watching would be served by having a mandatory retirement age- I'm usually sceptical but it seems the only way to stop the recent events where the court has turned into into a monarchy where half of the courtiers are hoping the elderly monarch dies & the other half are convincing a diminished, old and frail person to carry out because they don't want the heir on the throne. It's of course nothing new (Justice Douglas being one example)

[○∙◄☻¥tπ[╪AV┼cVê└]

Some thoughts.

1.) They'd be a lot of pressure for Biden to pick a young chief Justice if Roberts fell under a bus.

2.) Breyer is going to retire when he's going to retire- I don't think billboards work and I don't think there's any elected official who can convince him. He knows the stakes, he knows the political reality & he knows what losing his seat would mean- but he can easily argue that he's got another year at the least.

3.) I think a lot of the rather morbid aspects of the court & the court watching would be served by having a mandatory retirement age- I'm usually sceptical but it seems the only way to stop the recent events where the court has turned into into a monarchy where half of the courtiers are hoping the elderly monarch dies & the other half are convincing a diminished, old and frail person to carry out because they don't want the heir on the throne. It's of course nothing new (Justice Douglas being one example)

The irony of your monarchy retiring Supreme Court justices at age 70.

[Amenhotep Bakari-Sellers]

I like Breyer and D's can expand their Majority, the Senate maps are good thru 2026 and won't mind as long as D's keep the H him staying onto Summer 2026

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

Also, a mandatory retirement age might make the whole scene more polical; you would, after all, know in exactly which term they would have to retire.

[H.E. VOLODYMYR ZELENKSYY]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

Also, a mandatory retirement age might make the whole scene more polical; you would, after all, know in exactly which term they would have to retire.

What do you think of mandatory term limits in general?

[Donerail]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

No such thing as a truly independent body, which is why there'd be no reason for the conservatives to go along with it. Any variation on the "Missouri Plan" for federal judges would rely on the bar, and lawyers are overwhelmingly liberal (and this is reflected in the ABA).

At any rate, it'd probably be unconstitutional — the Advice and Consent Clause specifically mentions the power to appoint "judges of the Supreme Court" as among the President's powers.

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

No such thing as a truly independent body, which is why there'd be no reason for the conservatives to go along with it. Any variation on the "Missouri Plan" for federal judges would rely on the bar, and lawyers are overwhelmingly liberal (and this is reflected in the ABA).

At any rate, it'd probably be unconstitutional — the Advice and Consent Clause specifically mentions the power to appoint "judges of the Supreme Court" as among the President's powers.

Sure, it wouldn't/couldn't happen, but my point is that the current process is rather farcical, and it doesn't really matter whether it's "political" or not, the mere appearance of that is enough to do tremendous harm. In my view, this is all something of an inevitable result of the constitutional settlement, but here we are.

The Missouri plan is at least better than the absurdity of electing judges (though it's not absent from it).

[Geoffrey Howe]

Re Blair's last suggestion, I wonder if having them appointed by some independent body - so you don't know whether they're going to be "conservative" or "liberal" - might solve that. It would end the ridiculous spectacle that is the current confirmation process.

Also, a mandatory retirement age might make the whole scene more polical; you would, after all, know in exactly which term they would have to retire.

What do you think of mandatory term limits in general?

I haven't given too much thought to them, and I don't think they're the worst idea put forth about judges; but I am generally opposed to them, or think they should be high (say, 85). The 70 age-limit we have here strikes me as quite silly.

[politicallefty]

Hadn't that literally been the general presumption in the event that Rehnquist had retired or passed away before O'Connor announced her retirement first? Scalia might not have had the 'temperament' required to be Chief, but Rehnquist hadn't really had it either prior to his own elevation; he just knew how to the job after having watched Burger bumble & fail at it for 14 years, & everybody on the Court - Scalia included - valued Rehnquist's effectiveness & ability to lead. Even with his temperament, I don't really see a Chief Justice Scalia diverging too far off from that, let alone wildly so. Also, don't let it be forgotten that Scalia was a Cheney guy through-&-through at the end of the day. That'd have to count for something too.

And as for Breyer, the only guy who could have a conversation with him & actually persuade him to willingly step down this year even if he'd rather wait it out one more year longer passed away at a compound in Hyannis Port on Aug. 25th, 2009.

It always seemed to me like a scare tactic to get the liberal base motivated. Scalia was outspoken and rather acerbic. That's not denying his brilliance. He was probably far more consequential as an Associate Justice and without question one of the most consequential of the past few decades. I admit I did forget about his friendship with Cheney. However, the Roberts appointment was near genius (ironic considering who appointed him). In terms of temperament, he's almost the anti-Scalia. The word I always keep coming back to when I think of Roberts is charming. I really think Roberts feels like this is his Court and has made efforts to reinforce that, especially over the past several years.

I agree Roberts hanging it up soon is a very underrated possibility.  If it happened within the next 2 years, I guess we would get Chief Justice Kagan?  Also worth noting that a Roberts retirement, even under Biden, would probably push jurisprudence to the right.  Roberts has been leaning on Kavanaugh (and occasionally even Barrett) with some success.  If he's gone and the new CJ is a liberal who is going to dissent anyway, it will be Thomas and Alito leaning on Kav going forward.

I'm not expecting him to retire under President Biden, or at least certainly not in this term. But I would agree that any near-term Chief Justice appointment by a Democratic President would likely be Kagan for all of the obvious reasons. It's actually quite amazing how few Chief Justices have been appointed and confirmed under a Democratic President. Leaving aside what Republicans did to stop LBJ from appointing Earl Warren's successor, there have been only four (Vinson, Stone, Fuller, and the odious Taney).

[brucejoel99]

Hadn't that literally been the general presumption in the event that Rehnquist had retired or passed away before O'Connor announced her retirement first? Scalia might not have had the 'temperament' required to be Chief, but Rehnquist hadn't really had it either prior to his own elevation; he just knew how to the job after having watched Burger bumble & fail at it for 14 years, & everybody on the Court - Scalia included - valued Rehnquist's effectiveness & ability to lead. Even with his temperament, I don't really see a Chief Justice Scalia diverging too far off from that, let alone wildly so. Also, don't let it be forgotten that Scalia was a Cheney guy through-&-through at the end of the day. That'd have to count for something too.

And as for Breyer, the only guy who could have a conversation with him & actually persuade him to willingly step down this year even if he'd rather wait it out one more year longer passed away at a compound in Hyannis Port on Aug. 25th, 2009.

It always seemed to me like a scare tactic to get the liberal base motivated. Scalia was outspoken and rather acerbic. That's not denying his brilliance. He was probably far more consequential as an Associate Justice and without question one of the most consequential of the past few decades. I admit I did forget about his friendship with Cheney. However, the Roberts appointment was near genius (ironic considering who appointed him). In terms of temperament, he's almost the anti-Scalia. The word I always keep coming back to when I think of Roberts is charming. I really think Roberts feels like this is his Court and has made efforts to reinforce that, especially over the past several years.

This is true, & the reason that O'Connor fell in love with Roberts over the few months in which they served together in OT 2005, despite the evident ideological threat which he'd pose to hers upon the elevation of Alito, whom she didn't like at all.

[Utah Neolib]

I can see him retiring in 2023

[Calthrina950]

Hadn't that literally been the general presumption in the event that Rehnquist had retired or passed away before O'Connor announced her retirement first? Scalia might not have had the 'temperament' required to be Chief, but Rehnquist hadn't really had it either prior to his own elevation; he just knew how to the job after having watched Burger bumble & fail at it for 14 years, & everybody on the Court - Scalia included - valued Rehnquist's effectiveness & ability to lead. Even with his temperament, I don't really see a Chief Justice Scalia diverging too far off from that, let alone wildly so. Also, don't let it be forgotten that Scalia was a Cheney guy through-&-through at the end of the day. That'd have to count for something too.

And as for Breyer, the only guy who could have a conversation with him & actually persuade him to willingly step down this year even if he'd rather wait it out one more year longer passed away at a compound in Hyannis Port on Aug. 25th, 2009.

It always seemed to me like a scare tactic to get the liberal base motivated. Scalia was outspoken and rather acerbic. That's not denying his brilliance. He was probably far more consequential as an Associate Justice and without question one of the most consequential of the past few decades. I admit I did forget about his friendship with Cheney. However, the Roberts appointment was near genius (ironic considering who appointed him). In terms of temperament, he's almost the anti-Scalia. The word I always keep coming back to when I think of Roberts is charming. I really think Roberts feels like this is his Court and has made efforts to reinforce that, especially over the past several years.

I agree Roberts hanging it up soon is a very underrated possibility.  If it happened within the next 2 years, I guess we would get Chief Justice Kagan?  Also worth noting that a Roberts retirement, even under Biden, would probably push jurisprudence to the right.  Roberts has been leaning on Kavanaugh (and occasionally even Barrett) with some success.  If he's gone and the new CJ is a liberal who is going to dissent anyway, it will be Thomas and Alito leaning on Kav going forward.

I'm not expecting him to retire under President Biden, or at least certainly not in this term. But I would agree that any near-term Chief Justice appointment by a Democratic President would likely be Kagan for all of the obvious reasons. It's actually quite amazing how few Chief Justices have been appointed and confirmed under a Democratic President. Leaving aside what Republicans did to stop LBJ from appointing Earl Warren's successor, there have been only four (Vinson, Stone, Fuller, and the odious Taney).

It's been nearly 75 years since a Democratic-appointed Chief Justice was confirmed (Vinson by President Truman in June 1946), and almost 70 years since Vinson died (in September 1953). I don't think Roberts is going to retire anytime soon, and I could easily see him staying on the bench for another 10-15 years. He's "only" 65, and when you consider the ages at which Justices like Ginsburg, Kennedy, Scalia, Stevens (who retired at 90), O'Connor, and Rehnquist left the bench, either through retirement or death, it seems reasonable to expect that he still has a long tenure ahead of him.

[politicallefty]

It's been nearly 75 years since a Democratic-appointed Chief Justice was confirmed (Vinson by President Truman in June 1946), and almost 70 years since Vinson died (in September 1953). I don't think Roberts is going to retire anytime soon, and I could easily see him staying on the bench for another 10-15 years. He's "only" 65, and when you consider the ages at which Justices like Ginsburg, Kennedy, Scalia, Stevens (who retired at 90), O'Connor, and Rehnquist left the bench, either through retirement or death, it seems reasonable to expect that he still has a long tenure ahead of him.

Indeed. The Stone Court didn't even hit 5 years and the Vinson Court was just over 7 years. Both died fairly early, although that lead to the major transformation that became the Warren Court. It was a very different time when Justices didn't necessarily vote the way you would expect. Justice Frankfurter, appointed by FDR, was quite conservative. On the other hand, Justice Douglas was one of the most liberal ever to sit on the Court.

As I said, I don't expect Roberts to retire anytime soon. I was merely saying that I think any vacancy on his part in the near-term would likely result in a Chief Justice Kagan. I also don't think he's necessarily partisan enough to forego retiring under a Democratic President if he really wants to leave (whereas Justices Thomas and Alito will die before they allow that happen). I agree that Roberts likely has quite a few years left in him on the Court. O'Connor's retirement is a tragedy. She only retired to take care of and be with her husband who has Alzheimer's. Unfortunately, he was pretty much gone mentally shortly after her retirement. Otherwise, she might've retired under Obama and we would never have had Alito or anyone close to him.

[Statilius the Epicurean]

I've never understood the clamour for term limits or a mandatory retirement age, when the entire problem is partisan judges being appointed on party line votes and the opposition blocking and delaying nominations again for partisan reasons. If Breyer was term limited to 2023 liberals would still be calling for him to retire before the midterms!

The only way to stop the party politicisation of SCOTUS and prevent tactical retirements and blocking actions is to raise the bar for judicial confirmations to 67 votes in the Senate so that every justice by necessity is a bipartisan appointment.

[Geoffrey Howe]

Ah yes, the filibuster has been great at encouraging bipartisanship.
With the arguable exception of Alito, the Justices haven’t been particularly loyal to the President/party that appointed them.

[Statilius the Epicurean]

Ah yes, the filibuster has been great at encouraging bipartisanship.

The filibuster was in the Senate rulebook and was circumvented by the nuclear option requiring 50 senators. Everything being discussed here (term limits etc.) would require a constitutional amendment to add and remove.

With the arguable exception of Alito, the Justices haven’t been particularly loyal to the President/party that appointed them.

I don't know what this means. If judges aren't particularly partisan then why the extreme constitutional hardball from both parties over judicial appointments, to the point of keeping seats vacant for months?

At any rate, if one believes this then there is no need for reforms like your independent body at all.

[Geoffrey Howe]

Ah yes, the filibuster has been great at encouraging bipartisanship.

The filibuster was in the Senate rulebook and was circumvented by the nuclear option requiring 50 senators. Everything being discussed here (term limits etc.) would require a constitutional amendment to add and remove.

With the arguable exception of Alito, the Justices haven’t been particularly loyal to the President/party that appointed them.

I don't know what this means. If judges aren't particularly partisan then why the extreme constitutional hardball from both parties over judicial appointments, to the point of keeping seats vacant for months?

At any rate, if one believes this then there is no need for reforms like your independent body at all.

You said that 67 votes should be required for appointment to promote bipartisanship (or politically neutral judges). My point is that this hasn’t helped much elsewhere.

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

As for why there is such a spectacle, I think this is because both parties have realised that it is more enduring and effective to get their ideas deemed as enshrined in the Constitution rather than getting people to vote for them. (This is a flaw of the constitutional system.)

Here’s what Breyer himself says more eloquently than I (skip to 4:50 if you like)

[Donerail]

They are, primarily, not partisan. They are appointed by whichever party because they have a view of the law which tends to yield results that party prefers. In any case, this has heretofore been quite unsuccessful, but my point is that they reach these results not because they are Republicans/Democrats or chosen by Republicans/Democrats; they are chosen because they are likely to reach those results.

This is, perhaps, an argument you could have made in the 1990s. It does not hold much water today, more than two decades after the Republican Justices installed a Republican President.