Breyer Can’t Save the Court From Politics

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Of course Supreme Court Justice Stephen Breyer should retire at the end of the court’s term — or, better, announce his retirement now to take effect when his replacement has been confirmed. If, that is, he cares about preserving his legacy on the court and the ideas that he’s worked to advance. Given the U.S. political system, Supreme Court justices and circuit judges should retire strategically once they get old enough that they have a fairly high risk of being replaced by an opponent.

Rick Hasen argues that Breyer’s strategic retirement, contrary to what the justice himself says, wouldn’t politicize the court any more than sticking around would. But the truth is that such arguments are beside the point. The Supreme Court, and in fact the entire judicial branch, already is “political.” It’s always been political. It’s political by design.

The Framers invented a system of government — what Richard Neustadt called “separated institutions sharing powers” — in which the courts shared in the job of governing. Yes, justice is supposed to be impartial. But judges never were. Consider the first chief justice, John Jay. He’s mostly famous as one of the authors of the Federalist Papers, which were arguments in favor of ratifying the Constitution, and for negotiating various treaties. He was also a delegate to the first and second Continental Congresses, and eventually resigned from the court after being elected governor of New York. In short, he was a politician, and chief justice was just one position he held during his political career. In fact, all the early chief justices had experience in electoral politics before serving on the court.

That the courts are political doesn’t mean that they’re simply partisan, but the relatively recent view that politics has nothing to do with the job of being a judge would’ve been unrecognizable to the Framers, who expected politicians to fill the role. Nor is partisanship new; presidents have been putting political allies on the court since the beginning, and as parties grew that meant that justices were usually party politicians of some sort.

And that’s fine. Just as we want input from scientists, engineers, economists and others who possess neutral expertise, we don’t want to be ruled by them. Rule by experts — including experts in the law — is foreign to the republic that the Framers were trying to create. The U.S. is a democracy in which the people rule through elected representatives and officials, including judges, chosen by those representatives.

At any rate, I’m increasingly convinced that 18-year terms for Supreme Court justices — with staggered start dates, so that a new vacancy would open up in the first and third years of each presidency — would be an improvement over the current system. The logic behind nominating relatively young justices with fanatical partisan attachments and absolute ideological predictability is very strong in the current system, but there’s no reason think that this makes for a good Supreme Court. And the weird logic of retirement does no one any good.

But the reason for reform wouldn’t be to keep the court above politics. In governing the U.S., nothing is above politics.

1. Carey Stapleton, Jacob Oliver and Jennifer Wolak at the Monkey Cage on U.S. optimism after the pandemic.

2. Hans Noel on Senator Joe Manchin.

3. Quinta Jurecic and Molly E. Reynolds on the Senate report on Jan. 6.

4. Thomas B. Edsall on democracy and the Republican Party.

5. Bill Scher on preventing election subversion.

6. My Bloomberg Opinion colleague Michael R. Strain speaks with Scott Gottlieb about the pandemic.

7. And Robert Chesney on the new TikTok executive order.

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