Many of the liberals who say Justice Ruth Bader Ginsburg made a terrible miscalculation when she decided not to retire are now urging Justice Stephen G. Breyer to step down and let President Biden nominate his replacement.
The justice is 82 and has been on the court for nearly 27 years. In almost any other line of work, he would be well past retirement age. Justice Ginsburg’s death in September allowed President Donald J. Trump to name her successor and shifted the Supreme Court to the right.
“Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook,” Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, wrote in The Washington Post this month.
But scholars who have studied justices’ decisions to leave the court said they had their doubts about the wisdom or effectiveness of such prodding.
“A justice, like any other federal judge, would rather confess to grand larceny than to confess a political motivation,” said Christine Kexel Chabot, who teaches at the Loyola University Chicago School of Law and is the author of a 2019 study called “Do Justices Time Their Retirements Politically?”
Justice Breyer has been particularly adamant that politics plays no role in judges’ work, and he recently suggested that it should also not figure into their decisions about when to retire.
“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”