OP-ED: Stop telling Stephen Breyer to retire

Noah Feldman
Bloomberg Opinion (TNS)
Associate Justice Stephen Breyer poses for a group photograph at the Supreme Court building on June 1, 2017, in Washington, D.C.  (Olivier Douliery/Abaca Press/TNS)

Friends, Romans, countrymen, law professors: Please stop telling Justice Stephen Breyer to retire. Yes, Breyer is a (healthy) 81. Yes, the Democratic Senate majority is wafer-thin, and it would likely be impossible for President Joe Biden to replace Breyer with another liberal if the Democrats lose even one of their 50 votes in the Senate.

But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.

To understand Breyer’s thinking about retirement, we can begin by considering his worldview and jurisprudence — as well as his writing about the court, its function, and how it is viewed.

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Breyer’s career stands as a monument to the idea of a Supreme Court justice as a wise, practical actor who strives to make the system of government work effectively and efficiently. He attended Stanford, Oxford (where he studied as a Marshall Scholar), and Harvard Law School, before clerking for Justice Arthur Goldberg, who had previously been John F. Kennedy’s secretary of labor and later became Lyndon Johnson’s ambassador to the United Nations.

After spending a couple of formative years as an antitrust lawyer at the Department of Justice, Breyer quickly returned to Harvard as a law professor. His central intellectual contribution was (with his colleague Richard Stewart) to redefine the field of administrative law as an exercise in rational regulation. To simplify, before Breyer, lawyers mostly thought that administrative law was about letting experts in agencies do their jobs. After Breyer — and following his example — administrative lawyers began to become experts in costs and benefits, supply and demand, and other core principles of rational regulation.

Throughout his career, Breyer has believed that ideology and party are far less important than clear thinking and smart regulatory policy that makes people better off without costing more than it is worth. This perspective has come through in his extensive writing and lecturing, where he has emphasized that judges are not and must not be considered partisan political actors. If Breyer has an ideology, it is the rejection of ideology in favor of pragmatism.

This matters crucially for the question of his stepping down. The more the timing of his retirement is depicted as a partisan objective, the less he will want to do it. To be seen to retire “in order” to let Biden pick his successor would betray Breyer’s own career-long objective of making decisions based on what is right for the country, not for one party. That said, Breyer’s pragmatism means he knows he must weigh the costs and benefits of retiring at any given moment.

So it is absolutely essential for liberals to stop lecturing the man about it being his time to go. Every column or television comment — the more prominent, the worse — traps Breyer into having to stay out so as not to appear to be acting as a partisan.

What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement. The good news is, that’s his expertise. The liberal legal commentariat should stand back and let the master operate. He knows what he’s doing. Don’t make it harder for him.

— Noah Feldman is a Bloomberg Opinion columnist and host of the podcast “Deep Background.” He is a professor of law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter.