PRO: Supreme Court retirement planning in the twilight of a gerontocracy | Columnists

April 11, 2021

It’s well known that Supreme Court justices are afforded lifetime tenure, but Breyer has himself repeatedly lent support for a shorter term of service. “I think it would be fine to have long terms, say 18 years or something like that, for a Supreme Court justice,” he said in 2019. “It would make life easier. You know, I wouldn’t have to worry about when I’m going to retire or not.”

Breyer made similar comments in 2016 and 2020. And he’s now serving in his 27th year on the court.

Finally, consider Ginsburg’s ultimate entreaty, drafted just days before her passing: “My most fervent wish is that I will not be replaced until a new president is installed.” Her request was not honored by President Donald Trump and the Senate Republicans, just as one would imagine a similar request by Justice Antonin Scalia prior to his 2016 death would not have been honored by President Obama had the Senate at the time been in Democratic hands.

And that’s as it should be. There’s no “Ginsburg seat” or “Scalia seat” to be bequeathed after the deaths of the individuals. Every seat reverts to the public, and it’s the only the public, via their elected leaders, who get to determine what becomes of a vacancy. Americans voted for Democrats in 2012 and 2020. Ginsburg erred in delaying her retirement, but Breyer can learn from that mistake.

Public service often entails personal sacrifice for the public good, and an opportunity for balance in American jurisprudence is worth a whole lot more than the twilight of Stephen Breyer’s SCOTUS career. Justice Breyer should agree.

Tyler Cooper is the senior researcher at Fix the Court, a nonpartisan organization focused on increasing transparency and accountability at the U.S. Supreme Court. He wrote this for