For conservative Supreme Court justices, 80 is effectively retirement age.
After Anthony Kennedy turned 80, he stepped down at the first convenient moment — in 2018, when a Republican was in the White House and the court wasn’t already welcoming a first-year justice. Warren Burger and Lewis Powell both retired at 79, during Ronald Reagan’s second term. Sandra Day O’Connor left the court at 75, during George W. Bush’s presidency.
To put the pattern in its starkest terms, no modern conservative justice has forfeited the chance to be replaced by a Republican president after turning 80. That’s part of the reason that Democratic presidents have so rarely had the chance to flip a court seat: The conservative justices try not to let it happen.
Several liberal justices have taken a different approach. John Paul Stevens could have retired at age 80 during Bill Clinton’s presidency but did not. Ruth Bader Ginsburg, having been diagnosed with cancer, could have retired at 81 during Barack Obama’s presidency but did not. And Stephen Breyer, now 82, could have announced his retirement this summer, with Joe Biden in the White House and the Democrats narrowly controlling the Senate, but Breyer has not.
There is no one explanation for the pattern. It involves so few people that it may partly be a coincidence. Whatever the reasons, though, it has huge consequences for the country.
Personal vs. political
The aging liberal justices have essentially put a higher priority on their own personal interests than on their judicial ideals. And you can understand why a justice would be reluctant to leave the job. Many love the work — the camaraderie of the court, the attention they receive, the power they wield. Retirement, by comparison, can seem small and boring.
Maybe that’s why some justices have come up with dubious justifications for staying on the court. Breyer has argued that the courts are not political (a position at odds with vast amounts of evidence). Ginsburg claimed that Obama could not have won the confirmation of a similarly liberal nominee (even though he had already named Sonia Sotomayor, who’s more liberal than Ginsburg by common measures).
In these claims, you can almost hear the justices trying to persuade themselves that remaining on the court — perhaps until death — has no downsides for them. But it clearly does.
Ginsburg seemed to grasp this at the end of her life. Her dying wish was “that I will not be replaced until a new president is installed.” But it was too late. She had declined to let a Democratic president replace her when she had the chance, and instead Donald Trump chose the deeply conservative Amy Coney Barrett.
In the years ahead, Ginsburg’s decision may cost millions of American women access to abortion — as well as shape policy on voting rights, climate change, gun control, religion and other issues. If Breyer is eventually replaced by a Republican president, the court would move even further to the right.
Conservative justices have focused less on their own personal preferences when timing their retirements. Their attitude has been based more on realpolitik and political principle. One possibility is that they have been influenced by the cohesive conservative legal movement of the past few decades, embodied by the Federalist Society. The conservatives justices are more likely to act as if they are part of something larger.
The different attitudes toward retirement are not the only reason that conservatives dominate the court today. The refusal of Senate Republicans to let Obama replace Antonin Scalia, after Scalia died unexpectedly at 79, has played a big role, too. So has the pro-Republican bias of both the Electoral College and the Senate.
But it matters that liberal justices care less than their conservative colleagues about who replaces them. The only five justices to celebrate their 83rd birthdays on the bench in recent decades have been liberals. On Aug. 15, Breyer is set to become the sixth.
Breyer could retire next year, before the midterm elections. But Democrats’ Senate control is so narrow that even a single senator’s death or absence could prevent them from confirming a replacement — given Republican obstruction.
Judges must be “loyal to the rule of law, not to the political party that helped to secure their appointment,” Breyer argued in a recent speech. Otherwise, they undermine public faith in the law, he said.
Some have praised Breyer’s decision: “The louder the calls for retirement, the more he may resist,” The Wall Street Journal’s Kimberley Strassel wrote.
Others say Breyer is being naïve: “For him to continue to make the same gamble that Justice Ginsburg made and lost runs the risk of tainting his legacy as a justice and has the potential to be an anti-democratic disaster,” Paul Campos, a law professor, argued in The Times.
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