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Stephen Breyer knew when to walk away. It’s the most underrated skill

Breyer fulfilled the oath he and I both took as Eagle Scouts when he retired

Eric Garcia
Washington DC
Thursday 27 January 2022 21:52
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Justice Stephen Breyer retires from US Supreme Court

“On my honor I will do my best to do my duty to God and my country.”

These are probably the only words both retiring Justice Stephen Breyer and I have both memorized, since they are the opening lines of the Scout Oath that he and I both took as part of the Boy Scouts of America.

When I earned the honor of Eagle Scout, my mom wrote to the justice to inform him and I received a delightful note back –though I don’t know if it was done with an auto-pen like the ones I received from Presidents Obama, Carter and George H W Bush as well as then-Vice President Joe Biden.

On Thursday, after a day of swirling speculation – and a whole year of liberals prodding him to resign, lest he share the same fate of his fellow justice, Ruth Bader Ginsburg – Breyer announced he would step away from the Supreme Court. He has served his country in multiple ways: first in the army, then as a lawyer on the Senate Judiciary Committee, before working as a judge and then Supreme Court justice.

Throughout all of the miscellaneous camping ventures, learning how to tie a bowline knot (something I never truly mastered) and cleaning up local parks, Boy Scouts teaches its acolytes like Breyer and myself something that underpins these activities: service to the community and larger than yourself. Those principles yoke you to the rest of the world like a clove hitch on a piece of timber.

Certainly, having a long and distinguished career, Breyer deserves to have time to rest. But in his stepping aside, he is also committing one final act of service in his estimable career: he’s showing that he recognizes that he cares more about the integrity of the court than his own status. During his address at the White House on Thursday, he cited George Washington, himself a man who chose to leave his office after two terms even though he could have stayed until death.

But to stay on the bench in robe would be to ultimately risk erasing all of the meaningful gains that he made as a jurist. Two of the last three Justices – Antonin Scalia and Ruth Bader Ginsburg – to exit the court did so against their own volition when they died. Scalia’s death came when there was a Democratic president in office, which risked eroding everything he worked for and shifting the balance of the court. Lucky for him, Mitch McConnell, the master of obstruction, gummed up Barack Obama’s nomination of Merrick Garland and allowed Donald Trump to replace him with the equally conservative Neil Gorsuch.

Ginsburg was not so lucky. Her stubborn refusal to retire in 2014 when Democrats had the majority in the Senate despite her advanced age and multiple instances of cancer meant that she died when Donald Trump was in office. But Democrats were in the minority in the Senate at the time and with no filibuster, Trump named and McConnell rammed through Amy Coney Barrett’s nomination.

This, of course, is to say nothing of Justice Anthony Kennedy, who wrote groundbreaking rulings on LGBTQ+ rights, only to retire when Trump was president so he could appoint Brett Kavanaugh, who likely could jeopardize those rights and women’s rights in the near future.

Trump’s nominations and the GOP Senate proved immensely consequential and their impact resonated when it blocked the Biden administration’s vaccine-or-test mandate. The bell also tolled for abortion rights last month as the court seemed prepared to overturn Roe v Wade. Additionally, the court announced it will hear challenges to affirmative action, which could be its death knell.

Breyer’s retirement changes none of this. But it does allow for someone to “pick justice up,” as he said in his speech today.

Furthermore, his departure allows him to conduct another tenet: leave no trace and leave a place better than it was before, since his departure allows Joe Biden to nominate a Black woman. Not a bad way to leave while still “physically strong, mentally awake and morally straight,” as that oath said.

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