Former Supreme Court Justice Stephen Breyer signals support for term limits on the bench

Breyer timed his retirement to ensure a Democratic-led Senate could confirm his replacement

John Bowden
Washington DC
Sunday 24 March 2024 17:54 GMT
Justice Stephen Breyer retires from US Supreme Court

Former US Supreme Court Justice Stephen Breyer appeared to endorse ending lifetime appointments to the bench in an interview aired on Sunday.

Mr Breyer retired in 2022 after serving on the nation’s highest court for 28 years. His seat was filled by Justice Ketanji Brown Jackson, the first Black woman to be appointed to the court.

In a pre-recorded interview, which aired on NBC’s Meet the Press on Sunday, Mr Breyer was asked by Kristen Welker about imposing a term limit, or age limit, on Supreme Court justices.

“I don’t think that’s harmful,” he responded.

“If you had long terms, for example, they'd have to be long. Why long? Because I don't think you want someone who's appointed to the Supreme Court to be thinking about his next job. “So, a 20-year term? I don't know, 18? ... I don't think that would be harmful.”

He added that an age limit, or 20-year term limit, would have “helped” him make the decision of when to retire.

Mr Breyer, who had a liberal record during his time on the Supreme Court, retired in early 2022. The move allowed for the confirmation of Ketanji Brown Jackson under a Democratic-controlled Senate ahead of that year’s midterm elections, which threatened to return the chamber to GOP control.

The issue of Supreme Court retirements became sharply politicised during the final months of Barack Obama’s presidency. Mr Obama was facing down an election cycle as a lame-duck president with a GOP-controlled Senate headed by then-Majority Leader Mitch McConnell.

When Supreme Court Justice Antonin Scalia died in February 2016, Mr Obama nominated appellate court justice Merrick Garland as his replacement. However Mr McConnell, unwilling to see a conservative seat flipped to a liberal-aligned justice, refused to bring Mr Garland’s nomination to the floor.

Democrats’ anger over that perceived underhanded maneuver grew exponentially during the Trump presidency.

Mr Trump filled that vacancy caused by Mr Scalia’s death and another in 2018, following the retirement of conservative justice Anthony Kennedy. But it was the confirmation of Amy Coney Barrett to the bench just weeks before the 2020 election — a reversal of Mr McConnell’s pledge not fill court vacancies so close to an electon— that enraged Democrats.

The Supreme Court’s trust ratings are at near all-time lows. The court, with its strong conservative majority, threw out federal protections for abortion rights in 2022, reversing decades of seemingly settled legal precedent.

Mr Breyer also told NBC that the Supreme Court could revisit the question of whether the Constitution guarantees the right to abortion in future - with potentially different results.

“But who knows?” he added.

The retired justice also condemned the 2022 leak of the court’s decision to overturn Roe v Wade. “I think it was unfortunate, that leak,” Mr Breyer said.

In the wake of the fallout from the Roe v Wade decision, investigative journalism site ProPublica, exposed a controversial financial relationship between conservative justice, Clarence Thomas, and a right-wing billionaire connected to organisations that have brought cases before the court.

Mr Thomas is also embroiled in a separate controversy over his refusal to abstain from cases involving the January 6 insurrection at the US Capitol, and Mr Trump’s false claims of election fraud.

Mr Thomas’ wife, Ginni Thomas, is a well-known conservative activist who was revealed to have been involved in that effort and present at protests in Washington DC on the day of the attack.

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