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Justice Breyer Should Not Retire

Erika Hornmark

January 9, 2022

Justice Stephen Breyer was sworn into the Supreme Court in 1957. Now 83-years-old, liberal activists are calling for his retirement. The Court currently sits at a 6-to-3 ideological divide between conservative and liberal justices. Some demand Breyer's retirement so a younger liberal justice can be nominated by the Democrat President Biden and confirmed by the slim majority of Democrats in the Senate. Breyer should not heed to demands for his retirement, as justices' loyalties are intended to lie within the Constitution, and the implications of justice's strategic premature retirements could devastate the practices of the Court as a new trend of placing young, inexperienced justices with radicalized leanings will emerge.

Firstly, the Framers had never intended for justices to retire due to public pressure and to align themselves strongly with anything other than the Constitution itself. Federalist 78, written by Alexander Hamilton, advocates for life tenure on the basis that it "in a monarchy [life tenure] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and the oppressions of the representative body … to secure a steady, upright, and impartial administration of the laws." As devised by the Framers, life tenure was meant to insulate justices from public pressure - precisely the partisan pressure Breyer currently faces - and ensure the Constitution's impartial administration. If Breyer were to retire, the representative body is overwhelming the Court, weakening its legitimacy and ultimately taking away the Court's independence, a defining feature of the judiciary.

In Federalist 78, Hamilton also argues that the independence of its justices is "equally requisite to guard the Constitution" and the "bulwarks of a limited Constitution against legislative encroachments." Hamilton repeatedly voices that the protection of the Constitution is the primary role of the Supreme Court. Non-independent justices who allow public opinion and pressure to shape their rulings may set future legal precedents that place citizens' rights and freedoms meant to be safeguarded by the limited Constitution at risk. The practice of judicial review - one of the practices the judiciary derives power from - may become volatile if specific legislation is deemed wrongly constitutional or unconstitutional due to the sway of public pressure. 'Legislative encroachments' may occur in the form of legislation that weakens the judiciary's effectiveness, but in Breyer's case, the encroachments stem from Democratic senators' eagerness to confirm a younger Democratic nominee.

One such example of 'legislative encroachment' is a bill exercising Congress's powers to rearrange the Supreme Court as allotted to them in Article III of the Constitution by proposing term limits on Supreme Court justices in the wake of Breyer's proclaimed unwillingness to retire. In 2021, four Democratic House members proposed a bill with 18-year Supreme Court terms with staggered elections every two years. The Constitution does allow Congress to rearrange the Court; it similarly outlines the 'Good Behavior' clause for judges. In the term limit bill, the two clauses in Article III, Section I contradict one another. Within the bill is a gaping flaw: even if such a bill miraculously makes it into legislation, it could be struck down by the Court for violating the Constitution. Democrats in Congress pressuring Breyer into retirement by promoting a bill that directly contradicts the intention behind the 'independent' Court is a prime example of legislative encroachment.

Moreover, the implications of Justice Breyer retiring so a younger, more politically zealous candidate can take over his post would undermine the effectiveness of justices in future Courts. Suppose the executive branch and the legislative branch continue to exert as much influence as they can on the future makeup of the Supreme Court. Given the lack of age restrictions and prerequisites to becoming a justice, the justices will get sworn in younger and strongly politically aligned (to cement the president's ideological agenda after their term limit expires). As the justices get younger, they will have fewer opportunities to sit on inferior federal courts and, therefore, there will likely be a decline in cases in which justices act impartially to their political affiliation. This would result in more party-line votes for extended years, thus defeating the Framers' intentions for the Supreme Court to run without personal preferences.

Many argue that the Supreme Court no longer reflects the ideological makeup of the U.S.; thus, Democrats believe that Breyer should do his political affiliation a favor and retire. The Supreme Court was never intended to reflect the ideological makeup of the general population. Numerous Framers (such as Hamilton himself) advocated for elite representative democracy, wherein mainly educated elites could directly interact with the democratic system. The current function of the Supreme Court relies on checks and balances to ensure the intended function of the judiciary is executed. The process of confirming judges incorporates public opinion through Senate confirmation and presidential nomination. Senators are voted directly by their constituents, whereas the president is voted in indirectly through the elite representative Electoral College system, which still has its basis in citizens' votes. Since the Supreme Court justices are intended to be as objective and independent as possible, ideally, their political affiliation would have minimal impact on their rulings. Therefore, how the Court aligns with the ideological makeup of the nation is not a concern to the Framers; they valued objectivity and the rule of law over how representative the Court was overall.

Breyer should not retire—he current Supreme Court is working as intended, and if he retires due to public pressure, he goes against the intentions of the Framers of impartial judges serving lifelong terms and resisting the sways of political agendas. Furthermore, he would undermine the integrity of the Supreme Court as a whole if it gives in to public and legislative pressures for him to resign. Calls for his retirement are unfounded as they are based on partisanship, which has no place Constitutionally within the Court.


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Photo from CNBC