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There has been continuous pressure on Associate Justice Stephen Breyer to retire from the Supreme Court so that President Biden can nominate his successor. This pressure is purely political and has nothing to do with whether he can continue to do his work.

Justice Breyer is 82 years old and has been serving on the Court since 1994. Clarence Thomas has been serving since 1991, and is well known as the worst member of the Court. But he is only 73 and is a staunch Republican. Obviously, he wouldn’t retire to give Biden a chance to replace him.

In terms of tenure on the Court, Breyer is only number 26. In other words, 25 other justices spent a longer time in office than he. The one with the longest tenure was William O. Douglas, with 36 years on the court. But he had been appointed at a very young ago (40 years old), and he died 5 years after his resignation.

Although he is 82 years old, Justice Breyer has a decent chance of lasting another 8 years in office if that is his desire. Look at some of the other justices. Oliver W. Holmes, Jr., spent 30 years on the Court. He retired at age 90 (because he was ill) and died at age 94. John Paul Stephens was 35 years on the Court. He retired at age 89 and lived until he was 99. William J. Brennan was 34 years on the Court. He retired at age 84 and lived until he was 91.

Those roaring for Breyer’s retirement forget that he’s got a perfectly good chance of outlasting the Biden administration. And who knows who might be president in 2029?

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(Justice Brennan was a life-long Democrat but was appointed to the Court by President Eisenhower, a Republican. This just shows how much the Court has become a political tool. I can’t imagine such an appointment happening today).

So, there’s certainly the possibility that Justice Breyer could stay on the Court for another 8 years and retire several years before passing on. Justices Stephens, Brennan, and Holmes are good examples. Those roaring for Breyer’s retirement forget that he’s got a perfectly good chance of outlasting the Biden administration. And who knows who might be president in 2029?

Much depends on Justice Breyer’s health. “He seems in vigorous health, unlike some retirees in recent years or the late Justice Ruth Bader Ginsburg, whose September 2020 death allowed then-President Donald Trump to place a third appointee on the bench. Breyer, who jogs and meditates, has remained visible on the speaking circuit during the Covid pandemic via Zoom.” Given that, he might well outlast Joe Biden, who, while “only” 79, has survived two brain aneurysms and takes a lot of medication

It’s not very fair to put retirement pressure on Justice Breyer. He has done a good job on the Court and will probably continue to do a good job, even though elderly. After all, if he jogs and meditates, he is certainly looking after his health. And I feel sure that he enjoys what he’s doing, so why ask him to give it up? We’ve had lots of crummy justices on the Court, and just because Biden might appoint a Black woman, that doesn’t mean she’ll be any good. After all, look at Clarence Thomas. Who could have predicted what a wild man he would be on the Court? On the other hand, David Souter was nominated by George H.W. Bush and was supposed to be a conservative, but he voted with the Court liberals. Moreover, at age 81, he’s retired but still around.

michael hertz

Life is unpredictable. Liberals and progressives should be happy to have Justice Breyer on the Court. Let’s hope he stays there in good health and humor.

Michael Hertz