The Volokh Conspiracy
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Today Justice Breyer formally announced his retirement in a letter to the President. As usual, with Breyer, nothing is simple. His retirement is contingent on several conditional statements. Breyer wrote that "I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed." So, for at least the next five months or longer, Breyer remains on the Court.
Later, Breyer appeared at the White House alongside the President in the Roosevelt Room. Breyer made brief, rambling remarks that touched on the Gettysburg Address. After Breyer finished, the President invited Justice Breyer and his wife to spend a night in the Lincoln Bedroom, which has a handwritten copy of the Gettysburg Address.
President Biden invites Justice Breyer and his wife to come and stay in the Lincoln Bedroom at the White House.
— Matt Viser (@mviser) January 27, 2022
My mind immediately jumped to controversies over how President Clinton rewarded his donors with stays in the Lincoln Bedroom. My next thought was, the United States still has cases pending in the Supreme Court, both as a party and as amicus. Again, Justice Breyer hasn't retired yet. And, to be frank, Breyer hasn't stepped down until he finally steps down. We know announcements of resignation can be modified or even rescinded. In my view, making an offer for a night in the White House, however gracious, to a sitting Supreme Court Justice, strikes me as problematic.
Breyer may have a precedent to fall back on. Remember when Justice Scalia took a hunting trip with Vice President Cheney? Scalia vigorously defended his independence. Then again, Scalia's opinion distinguished his conduct from a private gathering at the White House:
The principal point, however, is that social courtesies, provided at Government expense by officials whose only business before the Court is business in their official capacity, have not hitherto been thought prohibited. Members of Congress and others are frequently invited to accompany Executive Branch officials on Government planes, where space is available. That this is not the sort of gift thought likely to affect a judge's impartiality is suggested by the fact that the Ethics in Government Act of 1978, 5 U. S. C. App. §101 et seq., p. 38, which requires annual reporting of transportation provided or reimbursed, excludes from this requirement transportation provided by the United States. See §109(5)(C); Committee on Financial Disclosure, Administrative Office of the U. S. Courts, Financial Disclosure Report: Filing Instructions for Judicial Officers and Employees, p. 25 (Jan. 2003). I daresay that, at a hypothetical charity auction, much more would be bid for dinner for two at the White House than for a one-way flight to Louisiana on the Vice President's jet. Justices accept the former with regularity. While this matter was pending, Justices and their spouses were invited (all of them, I believe) to a December 11, 2003, Christmas reception at the residence of the Vice Presi-dent—which included an opportunity for a photograph with the Vice President and Mrs. Cheney. Several of the Justices attended, and in doing so they were fully in accord with the proprieties.
But Biden did not invite all of the Justices. He invited only one of them for a private stay.
Justice Breyer probably won't take Biden up on this offer. And the White House may see fit to withdraw the offer.
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