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Should Justices Ginsburg and Breyer retire now?

Should Justices Ginsburg and Breyer retire now?
By Eric Black

In a short New Republic piece posted this morning, Harvard Law Prof. Randall Kennedy urges Supreme Court Justices Ruth Bader Ginsburg and Stephen Breyer to retire so their successors can be appointed by President Obama.

Kennedy is unusually blunt about something that is understood but usually not made explicit. In the modern era of highly partisan/ideological Supreme Courts, most justices try to manage their retirements for the good of their blocs. Justices John Paul Stevens and David Souter, both members of the liberal bloc (although, it must be acknowledged, both were appointed by Repub presidents), managed to retire during the Obama years leading to their replacement by two new (and young) members of the liberal bloc, Sonia Sotomayor and Elena Kagan.

The two newest (and young) members of the conservative bloc — Justice Samuel Alito and Chief Justice John Roberts — were both appointed by President George W. Bush to replace Reagan appointee Sandra Day O’Connor, and Chief Justice William Rehnquist, who was originally appointed by President Richard Nixon, then elevated to chief by President Reagan (although it must be noted that Rehnquist didn’t time his retirement; he died).

It hasn’t always been this way, as even the ideological migrations during the Supreme Court years of Stevens and Souter indicate. And it isn’t really supposed to be this way, at least according to various treasured myths of apolitical jurisprudence. And it is certainly possible to overstate the firmness and reliability of the blocs on certain issues.

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But Prof. Kennedy’s piece is firmly founded in the new, if unpleasant, reality. And so he says, fairly bluntly: Ginsburg and Breyer are both in their 70s. If the Repubs win the 2012 election, you have to consider the possibility of eight years of Repubs in the Oval Office and the possibility that the two oldest liberals won’t be able to hold out. If they retire at the end of the current court term, it would be difficult for Senate Republicans to avoid confirming Obama’s nominees.

It’s true, if tacky to be so blunt about it. But Kennedy’s piece takes on a certain poignancy at the end, as he discusses the case of the last liberal justice who retired under a Republican president:

“The career of Justice Thurgood Marshall is a cautionary tale. When asked about the prospect of retiring, he remarked on several occasions that his appointment was for life and that he intended to serve out his term fully. We now know, of course, that the end of Marshall’s time at the Court was less dramatic than that but deeply saddening nonetheless. Plagued by failing health, he retired on June 27, 1991, setting the stage for President George H. W. Bush to replace ‘Mr. Civil Rights’ with Clarence Thomas, who has become, ideologically, the most retrograde justice since World War II. It must have been agonizing for Marshall to witness his seat pass to the ministrations of a man whose views on the most pressing issues of our time were so balefully hostile to his own. Now, if Justice Ginsburg departs the Supreme Court with a Republican in the White House, it is probable that the female Thurgood Marshall will be replaced by a female Clarence Thomas.”

Then, a second poignancy is revealed in the one-sentence author biography at the bottom of the piece, where the editors divulge that Prof. Kennedy had clerked for Thurgood Marshall. Perhaps the professor’s knowledge of his mentor’s feelings is more than speculation.