U.S. Supreme Court

Justice Breyer should retire immediately, law prof writes; Senate could flip with 1 senator's death or departure

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Stephen G. Breyer

U.S. Supreme Court Justice Stephen G. Breyer.

U.S. Supreme Court Justice Stephen G. Breyer should retire, and he should do it now, according to Paul F. Campos, a professor at the University of Colorado Law School.

If Breyer waits even until the end of the Supreme Court’s term to announce his resignation, there is a risk that a Democratic senator will die, leave office or suffer a disabling health crisis, potentially putting the Senate in the hands of a Republican majority, Campos said.

He expressed his views in a March 15 New York Times op-ed noted by the National Law Journal.

According to the Washington Post, currently, Republicans control 50 Senate seats—the same number of seats held by Democrats and like-minded independents. Vice President Kamala Harris is the tie-breaking vote.

Campos is urging the 82-year-old Breyer to retire immediately, in contrast to Erwin Chemerinsky, dean of the University of California at Berkeley School of Law and a frequent ABA Journal contributor. In his own New York Times op-ed last month, Chemerinsky said Breyer should “seriously consider” retiring at the end of the Supreme Court term in July.

Chemerinsky had written a March 2014 op-ed calling for Justice Ruth Bader Ginsburg to step down to allow then-President Barack Obama to appoint her successor. After Ginsburg died in September 2020, then-President Donald Trump nominated Judge Amy Coney Barrett to fill her seat.

Campos said the odds are high that the Senate majority could switch during a legislative session. Since the end of World War II, he wrote, the composition of the Senate has changed during a session for 27 of the 38 Congresses. The current sessions lasts another 22 months.

In the current Congress, at least six Democratic senators who are older than age 70 represent states which a Republican governor could replace them, if there is a vacancy. Five other Democratic senators represent states in which a special election would have to take place to fill a vacancy. In the run-up to the special election, Republicans would control the Senate.

“Nothing illustrates the anti-democratic dysfunction of our political system more clearly than the current makeup of the Supreme Court,” Campos said. “Two-thirds of the sitting justices were nominated by Republican presidents, even though Republican presidential candidates have lost the popular vote in seven of the nine elections, which determined who nominated these justices.

“And these justices were confirmed by a Senate that has become skewed so radically in favor of electing Republicans that the 50 senators who caucus with the Democrats represent about 41.5 million more Americans than the 50 Republican senators do.”

Breyer “should announce his retirement immediately, effective upon the confirmation of his successor,” Campos wrote. “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 for the nation as a whole.”

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