The Volokh Conspiracy

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Justice Breyer Approaches His Retirement Like He Approaches His Judicial Decisions: With An Indeterminate, Multi-Factor Balancing Test

"There are a lot of blurred things there, and there are many considerations. They form a whole. I’ll make a decision."


Justice Breyer visited the New York Times bureau in Washington to talk about his new book. His publisher circulated "ground rules," and said Breyer would not respond to questions about his retirement. Adam Liptak had other plans. Liptak asked Breyer several questions about retirement, and Breyer answered.

Liptak asked Breyer about a Rehnquist quote, and Breyer answered.

He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was "inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court."

"No, it's not inappropriate," the former chief justice responded. "Deciding when to step down from the court is not a judicial act."

That sounded correct to Justice Breyer. "That's true," he said.

Then Breyer volunteered a quote from another Justice that was on this mind:

He recalled approvingly something Justice Antonin Scalia had told him.

"He said, 'I don't want somebody appointed who will just reverse everything I've done for the last 25 years,'" Justice Breyer said during a wide-ranging interview on Thursday. "That will inevitably be in the psychology" of his decision, he said.

"I don't think I'm going to stay there till I die — hope not," he said.

And before you know it, Breyer opened up with his internal debate:

Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. "There are many things that go into a retirement decision," he said.

Justice Breyer approaches his retirement the same way he approaches his judicial decisions: with an indeterminate, multi-factor balancing test:

The justice tried to sum up the factors that would go into his decision. "There are a lot of blurred things there, and there are many considerations," he said. "They form a whole. I'll make a decision."

He paused, then added: "I don't like making decisions about myself." …

But he seemed at pains to make one thing clear: He is a realist.

"I've said that there are a lot of considerations," Justice Breyer said. "I don't think any member of the court is living in Pluto or something."

A lot of blurred things that make a whole. This amalgamation sums up just about any Breyer opinion.

My guess? He didn't retire this year, to prove he was not influenced by politics. But he will retire next year when the Democrats still maintain a slight majority in the Senate. Of course, that balance could easily change.

Justice Breyer also referred to the "shadow docket" by name. I think this is the first time a Justice has used that phrase publicly.

Justice Breyer said the court should take its foot off the gas. "I can't say never decide a shadow-docket thing," he said. "Not never. But be careful. And I've said that in print. I'll probably say it more."

Asked whether the court should supply reasoning when it makes such decisions, he said: "Correct. I agree with you. Correct."

Kudos to Will Baude for making such an important contribution on this point.