Written by Isaac Chotiner and published in The New Yorker 6/22/21
“It has been a little odd when people think that the best way to convince a Justice to retire is to write an open letter,” Noah Feldman says.Photograph by Andrew Harrer / Bloomberg / GettyLast Monday, Senate Minority Leader Mitch McConnell made clear that if Republicans recapture the Senate next year, they would likely reject any Supreme Court nominee that President Biden put forward in 2024. This position is consistent with McConnell’s stance after the death of Justice Antonin Scalia, in 2016, when he prevented President Barack Obama from filling the seat. (About the possibility of the Senate confirming a nominee in 2023, McConnell was noncommittal.) His comments increased the pressure on Justice Stephen Breyer, who is eighty-two, and who many progressive activists hope will retire this year, before the midterms. But Breyer has indicated that he believes the timing of his retirement should not be dictated by politics. Judges, he stated at a lecture in April, “are loyal to the rule of law, not to the political party that helped to secure their appointment.”
To discuss this issue, I spoke by phone with Noah Feldman, a professor at Harvard Law School. In a recent column for Bloomberg, he argued that the Justice “can be trusted to do the right thing—provided liberal law professors don’t box him in by declaring that he ‘must’ resign. . . . Every column or television comment—the more prominent, the worse—traps Breyer into having to stay out so as not to appear to be acting as a partisan.” During our conversation, which has been edited for length and clarity, we discussed whether Breyer should make his decision based on who is President, what we might learn from Ruth Bader Ginsburg’s death, last year, and whether it made sense to view the Supreme Court as a political institution.
Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?
I think the retirement decision is overwhelmingly personal, and I would not presume to tell a Justice that he or she should stay in the job if he or she wanted to retire—that’s for sure. Then, like every other observer who cares about the living Constitution, I hope that Joe Biden has an opportunity to nominate someone to the Court who shares that broad preference, and we know that, if the Republicans were to take power in the Senate, it’s very unlikely that they would confirm such a nominee.
You say it’s personal, but it’s not personal in the sense that it affects millions of people.
Well, the way you put the question was, Do I think there’s a reason for him to stay on? There might be circumstances in which you could imagine that a Justice really wants to step down and you say to that Justice, “Gee, I think you owe it to the Republic to stay in your post.” Indeed, some of Justice [David] Souter’s former law clerks said that to Justice Souter during the George W. Bush Administration, when he would say that he was ready to throw in the towel. I can imagine circumstances like that do arise, but we’re not in those circumstances now.
But, if you thought that people telling Justice Breyer to retire would have the effect of getting him to retire, is that something that you would approve of?
I would think that if someone really wanted a Justice to retire, the logical way to do that would be to communicate that privately to the Justice. I think it has been a little odd when people for whom I have a lot of respect—important scholars and academics or public figures—think that the best way to convince a Justice to retire is to write an open letter.
If Patrick Leahy or Chuck Schumer ran into Justice Breyer and said, “I think you should retire,” would that be appropriate, or would that be too partisan?
Well, that raises a different question, because those are members of a different branch of the government. I don’t think it’s appropriate for members of the executive or the legislative branch of government to say to a sitting Supreme Court Justice, “I think you should retire.” I think that’s a form of judgment or etiquette largely shared by most people. But I was talking about law professors and people like that, some of whom wrote pieces saying that Justice Ginsburg should retire, and some of whom have written pieces saying that Justice Breyer should retire.
You write about Breyer, “He is the one of the great pragmatist justices ever to have sat on the Supreme Court. . . . Breyer also knows Capitol Hill, having worked there three separate times,” and you add, “What Breyer needs and deserves is room to maneuver, to find the best and most rational way to satisfy the complex competing interests around his retirement.” This implies that the decision is complex and requires expertise. Do you think it is?
It’s certainly a complex decision. First, you have the personal considerations that anyone has when retiring from a position that he or she has been in for a long time. Second, you have the legitimate desire on Justice Breyer’s part, or at least I believe Justice Breyer has, to insure that the Supreme Court does not appear to be a partisan institution. To retire the moment that you have a Democratic President and a Democratic-controlled Senate might, to some people, look like you were saying that the institution is in some sense partisan, and Justice Breyer strongly rejects that idea. What’s more, at a moment when many people are insisting the Supreme Court is partisan, he has been giving lectures and is in the process of writing a book trying precisely to make a point that the institution isn’t partisan. So he has a vested interest in not sending that message. Third, of course, is the pragmatic reality he understands perfectly well that, in the new political situation that we live in, a Democratic President who doesn’t control the Senate is very unlikely to get anybody through, and that raises the risk that you might have a Republican President choosing someone whose constitutional vision or legal vision is super different from Justice Breyer’s. He’s a pragmatist, and he knows that.
Could you imagine someone like Breyer making the argument that it’s inappropriate to even consider the possibility that a Republican Congress might not let a replacement through?
Justice Breyer is a highly rational person, and he’s a realist.
Yes, in the piece you say,“The liberal legal commentariat should stand back and let the master operate.”
That’s true. I believe that, but what I’m also trying to say is that, in the course of his entire body of jurisprudence, I can’t think of a single case in which he relied on a formalism that required him to ignore reality. He thinks that reality has weight in the world and one should take account of it. So I can’t imagine Justice Breyer believing that it would be entirely inappropriate for him to, in any way, take account of political reality. That’s not the kind of viewpoint that I would attribute to him. Among other things, Justice Breyer has a concern for the Supreme Court to function well. And, in a world where a Republican Senate won’t confirm any nominee put forward by Democratic Presidents, if a Justice stepped down or had to step down in that circumstance, that would leave an empty Supreme Court seat, and that would not be good for the Supreme Court’s functioning.
You wrote another column last July, in which you claimed, “The consequences of the 2020 vote on the Supreme Court, and the country, could not be greater.” That implies that Breyer needs to retire, right? If the future of the Court hinged on who was going to win the 2020 election, then it seems like whoever won should have a chance to appoint as many Justices as possible.
Right now, the Court has a 6–3 conservative majority. If there were to be a Republican President elected in 2024, and that person had a Republican Senate, there’s a real possibility that, if Justice Breyer had to retire during that period of time, we would go to a 7–2 conservative majority, which is very different from a 6–3 majority. So, from my perspective—of someone who favors a Supreme Court that has as many Justices as possible who believe in the living Constitution—that would be a devastating consequence. That said, the current 6–3 conservative majority can already potentially reach decisions that will themselves be devastating from the standpoint of protecting fundamental rights. That could happen even if the Court remained at 6–3. Did I write that before or after Ginsburg died?
It was before Ginsburg died.
I wrote that under those conditions when it was a 5–4 Supreme Court. Things do look a little different once the Court goes to 6–3.
Right, but the reason the Court went from 5–4 to 6–3 is that Justice Ginsburg didn’t in fact retire, and died. So then how do you view her decision not to retire when there was a Democratic President?
I desperately wish that Justice Ginsburg had retired when Barack Obama was President and the Democratic Party controlled the Senate. Her health had not been good at all, and that was known to the world, and of course known to her. I am deeply saddened that she did not.
So you think waiting too long is a fair critique of a Justice?
Look, I think it’s always situational, right? When should Thurgood Marshall have stepped down? He tried really hard to make it through eight years of Reagan and four years of George H. W. Bush, and he just didn’t quite make it. [Marshall retired in 1991 because of health issues.] But should he have stepped down under Carter, almost ten years before he actually passed away? That’s a pretty tough call to make, and it is not at all clear that he should have done.
He was in his seventies, not his eighties, in the Carter years, right?
Yeah, there was a big difference of age. But, yes, I think if there’s a Justice who cares about his or her legacy, and recognizes the possibility that that legacy could be disastrously undercut if he or she did not step down, it’s sensible for the Justice to take that into account and to step down. I have a pragmatist view of it.
I’m curious about this idea, which you’ve been circling in your answers, of viewing the Supreme Court as a political institution. I understand why in theory perhaps its not being a political institution would be a valuable thing for our country. But it seems clear to me that it is a political institution and that denying that reality seems to get us not necessarily in a better place. Do you agree?
I would like to draw a sharp distinction between the Supreme Court as a political institution and the Supreme Court as a partisan institution. Hard cases that come in front of the Supreme Court, whether they’re constitutional or statutory, involve subtle judgments about how to interpret the Constitution and how to interpret the laws, and those inevitably implicate deeply held political beliefs. When the Supreme Court decides those close cases, politics unquestionably come into its decision-making process, and, in that sense, the Supreme Court is a political institution. Look, the Justices are appointed by the Presidents of different parties and confirmed by the Senate, so therefore the Justices are appointed through a political process, and, in that sense also, the Supreme Court is a political institution.
But the Supreme Court ideally should not function as a partisan institution in the sense that the Justices should not be deciding cases based on what outcome would benefit one political party or the other. That’s hugely important as a value that all the Justices should, in principle, hold. Does that mean that every Justice has been wholly nonpartisan? Of course not, but the aspiration to be nonpartisan has the effect of constraining decision-making.
Bush v. Gore happened, and when it was decided, it looked to many observers like a partisan decision, and that was very costly to the legitimacy and reputation of the Supreme Court. In subsequent years, a good number of the Justices have tried hard not to make decisions that would make the Supreme Court look partisan. An example of how this constraint can operate does not require us to go very far back in history. Just think of how the Supreme Court operated during the 2020 election. There were many people in the country, including, it would seem, the President, Donald Trump, who imagined and hoped that the Supreme Court would intervene in the election and, against established precedent, decide some case or set of cases in a way that would enable Trump to win the election even though he’d lost, and reasonable observers were worried about that.
That perception itself is very harmful to the Supreme Court. But the very good news is that the Supreme Court Justices did not go that way. Those Justices did not decide, say, the Pennsylvania case in a way that would have thrown the electoral outcome into doubt. Instead, the Justices overwhelmingly voted in a nonpartisan way that was consistent with the rule of law. We who are not on the Supreme Court should be doing everything we can to encourage the Justices in their commitment to the ideal—and it’s an ideal—of deciding cases without reference to partisanship.
I’d concede that there were a lot of overwrought claims that the conservative majority would just hand the election to Trump, and those turned out to be completely wrong. It doesn’t seem to answer the question, though, of how they would have behaved in an election that was as close as Florida in 2000. About that, I have absolutely no confidence that they would not have acted in a partisan way.
As I said, Bush v. Gore did happen, so I can hardly say that it’s inconceivable that a 5–4 majority could intervene in the way that they did intervene in Bush v. Gore. But the fact is that constraints on Justices are not there only for the cases in which they might not work. They’re still valuable the rest of the time. I thought that people’s saying the Supreme Court was going to hand the election to Trump was an overwrought view, but neither I nor anybody else could be absolutely certain of it, and the reason that our judicial system works when it works is because not only the Justices but the lower federal-court judges, too, are people who, on the whole, actually believe in the rule of law. And that set of beliefs is really important, even if we, as critical outsiders, are not naïve and admit that politics come in. Their belief, nevertheless, is importantly constraining.
You mentioned different kinds of political decision-making, and I wonder about a certain kind, beyond partisanship, which is when people work backward, consciously or not, to the decision that they want. It’s very easy for Justices to tell themselves that they’re just calling balls and strikes, as Chief Justice [John] Roberts famously said in his confirmation hearings, and maybe he consciously believes that. But I can often guess where the Justices will end up on certain Court cases, and it’s not just because I studied their judicial philosophy and understand the constitutional issues involved. It’s because I know which were appointed by Republicans and which by Democrats. Is that too glib?
It’s not a question of glibness, but it is a question of subtlety, of differentiating jurisprudential commitments from politics. Now, jurisprudential commitments include some political beliefs. In fact, when the late, great Ronald Dworkin talked about what we call jurisprudential beliefs, he said that they were grounded in what he called “political morality.” He was acknowledging that there is a morality that is connected to people’s political values and beliefs. Again, that is, to some degree, inevitable in constitutional decision-making in high-stakes cases, but it should be separable from who happens to be the President now, and whether you like the legislation or not like the legislation.
Chief Justice Roberts did indeed cast the decisive vote not to overturn the individual mandate in the Affordable Care Act case, and I don’t think that’s because he loved Obamacare. I think it’s because he really believed that, in light of the doctrine, there was a constitutional way to uphold the individual mandate. It doesn’t matter so much whether that was totally constrained by belief or whether his desire was to appear as though he was being nonpartisan. Who knows? You have to be deep in his psyche to know that. Even he might not know. But the result was a distinctly nonpartisan decision.
Could one make the argument that one side’s partisanship changes the rules of the game for the other side? I worry that the ship has left the harbor. This is now a partisan institution. Republicans act like it’s a partisan institution and will play very tough, and so, even if there’s something in theory to say for Breyer trying to establish nonpartisanship, in theory it’s naïve.
Stephen Breyer is one of the least naïve people I have met in my life, and I have very little worry that his decision-making process would be naïve. And if I did think that he were naïve, I would not think that his consciousness could somehow be raised to realism by op-eds. That said, the appointment process now is absolutely wholly partisan. That is absolutely true. We have entered a new era in the nature of the appointments process. That is different from whether the Supreme Court, in terms of the decisions of the Justices from their perspective, needs to be partisan. Notice the distinction.
You wrote a column last year about Amy Coney Barrett, in which you stated, “I disagree with much of her judicial philosophy. . . . Yet despite this disagreement, I know her to be a brilliant and conscientious lawyer. . . . Those are the basic criteria for being a good justice. Barrett meets and exceeds them.” You also called her a “sincere, lovely person,” and wrote, “Barrett is also a profoundly conservative thinker and a deeply committed Catholic. What of it? . . . I’m going to be confident that Barrett is going to be a good justice, maybe even a great one.” The Yale law professor Akhil Reed Amar famously wrote in support of Brett Kavanaugh’s confirmation, before the sexual-assault allegations against Kavanaugh became public. Is there too much focus in the legal profession on the quality of the Justices’ reasoning or how lovely they are as a person, when what is really important is how they’re going to vote on key issues?
When I wrote that piece, it was a hundred-per-cent certain that Justice Barrett would be confirmed by a majority-Republican Senate. The point that I was trying to make in the piece was not that any particular Democratic senator should vote for her confirmation. I’m not a senator, and I didn’t have to take a position on that. What I was saying is that it is and was unnecessary to vilify a Supreme Court nominee who is on her way to confirmation solely because one deeply disagrees with her judicial philosophy and is very likely to disagree with decisions that she reaches.
We do better by fostering a judicial and political culture in which we can acknowledge the sincerity and the good qualities even of people with whom we deeply disagree, and who will do things that we think are constitutionally wrong, and the reason we do better when we’re able to do that is that it doesn’t weaken our own beliefs or our own commitments. Rather, it encourages us and encourages them to remember that we’re all in this thing called living under the Constitution together, and that if we’re all in this thing together and we’re not evaluating every issue at the personal level from a partisan political perspective, then, when the stakes are very high, as indeed they were going to be just after Justice Barrett joined the Court, in the 2020 election season, we will increase the odds that those Justices who are confirmed share the belief that I have in the ideal of nonpartisanship.
Couldn’t you flip that the other way and say that, by arguing being respectful to people changes how they behave, you are arguing that people are inherently political, and that they respond to incentives and they respond to how they’re treated, or they respond to people badgering them—
No, no. No, Isaac, I don’t think so at all. Take a social practice, such as kindness to other people. If I say that if I’m kind to you, it increases the odds that you’ll be kind to me because we’re both committed to a belief in kindness. I’m not saying that kindness is an empty value. All social values have some components of self-interest, including kindness, including goodness, including nonpartisanship. I want a legal system in which Justices are nonpartisan because otherwise the vote might go against me sometime, and [one in which] the person on the other side also believes in nonpartisanship and in its value because the vote might go against her sometime. So it’s not undercutting that commitment; it’s a reinforcing of that ideal, and that’s true of kindness, it’s true of politeness, and it’s true of nonpartisanship.
That totally makes sense, although it goes against what Justice Roberts would say about calling balls and strikes, because the whole point of being an umpire is that you’re not supposed to care how people treat you.
You’ll notice that I’ve never embraced the balls-and-strikes analogy. But you’re a sports fan, and so you know that statistical analysis shows that different umpires have different strike zones. So we know that even the analogy is referring to an underlying reality that is, in fact, not objective. Umpires do call balls and strikes, but it turns out each of them calls them differently, on the basis maybe not of their political beliefs or commitments but based on some incompletely expressed idea of what’s a ball and what’s a strike. So there is no genuine objectivity with respect to balls and strikes as long as human beings are making the call.
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