At Harvard Law, Breyer's Farewell Address?

            Supreme Court Justice Stephen Breyer might or might not be contemplating his eventual retirement these days, but he delivered a lecture at Harvard Law School last week [April 6] that could well serve as his farewell address after twenty-seven years on the Supreme Court. Breyer used the two-hour lecture, the video available via YouTube, to warm against “the perils of politics” that threaten the Court’s authority and public confidence in the Court.

At age 82, Breyer is now the oldest of the nine current justices and the tenth oldest justice in history. He has no known health issues that interfere with his work or that might force him to step down in the near future. His questions to lawyers during the current term’s oral arguments have been unaffected by advancing age. He also demonstrated his mastery of legal craftsmanship by leading the Court’s 6-2 majority last week [April 5] in a factually complex decision that cleared Google of copyright infringement for copying parts of the Java platform when it set up the Android platform for smartphones beginning in 2005.

             Breyer, it must be remembered, was confirmed by an 87-9 Senate vote in 1994 based on his reputation for bipartisanship as a Senate committee staffer and as a judicial moderate on the federal appeals court in Boston. He has been a moderate liberal on the Supreme Court, siding with conservatives for example in some Fourth Amendment decisions favoring law enforcement over suspects or defendants.

            The speculation that Breyer might or perhaps should retire soon has increased with the election of an ideologically compatible president in the White House and Democrats in control of the Senate. Breyer made no reference to possible retirement in the Harvard lecture and has had no public comment since a liberal law professor called for his early retirement last month [March 15] in an op-ed in The New York Times.

The University of Colorado’s Paul Campos warned in the article that Democrats could lose control of the Senate if any one of the fifty Democratic senator were to die or retire and be succeeded by a Republican appointee. Under present circumstances, Campos wrote, “it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.”

Breyer’s longtime colleague, Ruth Bader Ginsburg, responded to questions about her own tenure over the years by vowing to stay on the job as long as she was able to do the work. Her death last fall gave President Trump the chance to create a lopsided conservative majority on the Court, with the liberal bloc reduced from four to three justices. Breyer has been mum about possible retirement even to the point of avoiding any assurance that he is still up to the job and plans to stay as long as he is.

            In his lecture, Breyer noted that despite the political attacks of the past half-century the Court continues to do well in public opinion polls that show it has higher approval ratings than Congress. Public confidence in the Court, Breyer explained, was neither automatic nor foreordained. He relates the history of political conflicts with presidents—for example, between Jefferson and the Marshall Court, Jackson and the late Marshall Court, and FDR and the conservative Court Roosevelt inherited from Republican ascendancy in the 1920s.

            Recalling this history, Breyer appears to be pleading with whatever audience the lecture may gain to set aside their view of justices as politicians in robes. Judges, he acknowledges, take the bench with political views and legal philosophies well formed and shaped by their personal backgrounds. “I cannot jump out of my own skin,” he explains. “No one can.”

            Breyer’s pleading, unfortunately, will fall on deaf ears on the political right. Five Republican presidents – Nixon, Reagan, Bush 41, Bush43, and Trump – have pushed the ideological envelope in appointments to the Court and conditioned political partisans to view Democratic-appointed justices as activists even as conservative justices  have crafted new constitutional doctrines or overruled precedents to throw out laws enacted by Congress.

            True to his warnings against politics, Breyer cautioned against one of the Supreme Court reform proposals that has gained favor among some Democrats and many liberal Court watchers. Expanding the Court to ten justices, he warned, would feed the public perception that decisions are driven not by law, but by politics. Breyer’s opposition may well be moot., however As candidate and as president, Biden has not endorsed expanding the Court’s membership and any such proposal would be all but impossible to win filibuster-proof support in the 50-50 Senate.

            As for other Supreme Court reform proposals, the Washington Post editorial board weighted in this weekend [April 11] by arguing that term limits for justices would be more important than Court packing and more politically palatable as well. Those proposals too face an uphill road in the face of constitutional doubts and intricate questions about how to apply term limits to sitting justices.