The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Charles Breyer on Stephen Breyer's Retirement: "I think it's clear that politics played a role"

A bit of political brotherly love.


The Breyer family is very accomplished. Older brother Stephen Breyer was appointed to the First Circuit at the young age of 42, and was elevated to the Supreme Court when he was 56. Younger brother Charles Breyer was appointed to the U.S. District Court at the age of 56. He has served on that court for more than two decades.

Robert Barnes of the Washington Post asked Judge Charles Breyer about his brother's retirement.

But Breyer's decision to retire reflects another side of him, one often mentioned in descriptions of his time on the court: pragmatist.

"I think it's clear that politics played a role" in his decision to retire, Breyer's brother Charles, a federal district judge in San Francisco, said Thursday. "He's pragmatic and politics is a factor . . . that has to be considered."

It's not the only thing, Charles Breyer said. Only in the realm of the lifetime appointments the Supreme Court affords is an inquiry launched as to why an 83-year-old really wants to retire.

"Obviously his age is a factor," the 80-year-old Breyer said. "And he did not want to terminate his service on the court by death — that's not the exit he wanted."

Some brotherly love, huh?

For more than a year, Justice Breyer insisted that his decision to retire will not be based on politics. And, as usual, his reasoning was muddled. Last August, I wrote:

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

Then, lo and behold, that multi-factor balancing test tilts left. Breyer retires with a Democratic President, who may lose his Democratic Senate majority at any minute. And he announces his retirement at the White House. Plus, his brother insists that the retirement was based in part on politics!

I don't begrudge Justice Breyer. He saw what happened to his colleagues who died in office, including Justices Ginsburg, Scalia, and Chief Justice Rehnquist. And he knows how fleeting majorities are in the senate. Plus, the pressure from the Demand Justice crowd must be suffocating. So he made a pragmatic decision. But it was a decision, as Judge Breyer explained, in which "politics played a role."

Update: Demand Justice is using Breyer's appearance at the White House as a photo-op: