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Stephen Breyer
Supreme Court Justice Stephen Breyer testifies on Capitol Hill, March 21, 2015.Manuel Balce Ceneta / AP file

Stephen Breyer's unfortunate timing and flawed rationale

Stephen Breyer apparently thinks his experience is so relevant, he should remain on the Supreme Court. Reality suggests otherwise.


Supreme Court Justice Stephen Breyer's timing could be better. The center-left jurist has written a new book about the high court and why it shouldn't be seen as a partisan institution, all evidence to the contrary notwithstanding.

The book will hit shelves tomorrow – on the heels of the Supreme Court's Republican-appointed conservatives stripping Texas women of Roe v. Wade protections. And overturning the White House's evictions moratorium. And rejecting the Biden administration's effort to reverse Donald Trump's "Remain in Mexico" policy for asylum seekers. And relying a little too heavily on the "shadow docket."

"Could the timing of Supreme Court Justice Stephen G. Breyer's new book be any worse?" The Washington Post's Ruth Marcus asked, adding that the justice's book offers "an artfully airbrushed version of the judicial process."

But as the book reaches the public, Breyer is also helping promote the project with a series of media interviews, which naturally broach the subject of how much longer it'll be before the 83-year-old jurist retires.

Breyer spoke last week with NPR's Nina Totenberg, who touched on an interesting point:

"[I]f his plans on retirement remain obscure, the realities of the court's docket in the upcoming term are not. Abortion, guns and possibly affirmative action in higher education – they're all on the docket. And Breyer made clear in our interview his 27 years on the High Court have taught him an important lesson. It takes years, somewhere between two and five years, for a new justice to really settle in."

The justice specifically told the longtime legal affairs correspondent, "People have to become acclimatized to that institution and work out who they're going to be as judges. It takes a while."

It led Totenberg to add, "The implication, not said, is that with a docket this inflammatory this term, no new Biden-appointed justice could do as well as he could to prevent or soften what liberals would call a wholesale slaughter of Supreme Court precedents."

Part of what makes this notable is that the rationale is new: Breyer hasn't previously suggested a new justice, chosen by President Joe Biden, would be unprepared for "a while."

But it also stood out because it's unpersuasive. If there were reasons to believe that Breyer was leveraging his lengthy judicial career to steer his conservative colleagues in responsible directions, it might make slightly more sense for the justice to hang on for a while.

Reality tells a different story. There's little to suggest that the Supreme Court's dominant six-member conservative majority cares at all about Breyer's status as an "acclimatized" justice. Those Republican-appointed justices rolled right over his concerns when allowing Texas' abortion ban to go into effect, despite the fact that it's obviously at odds with existing precedent.

Besides, Justices Sonia Sotomayor and Elena Kagan have each been on the court for more than a decade. If Breyer is concerned about progressive jurists being able to hold their own, he can step down with confidence that two of his colleagues are more than capable.

As for his possible successor, if it "takes a while" for a new justice "to become acclimatized," the sooner Breyer retires, the better it will be for the future justice who replaces him.