Jurisprudence

If History Proves Anything, It’s That We Don’t Know How Long Stephen Breyer Will Serve

Members of the Supreme Court Brett Kavanaugh (L), Neil Gorsuch (2L), Stephen Breyer, and John Roberts (R) wait for the casket containing the remains of former US President George H.W. Bush to arrive at the U.S Capitol Rotunda on December 03, 2018 in Washington, DC.
Stephen Breyer at the Capitol in 2018 to view the casket of former President George H.W. Bush, who lived until 94. Photo by Brendan Smialowski - Pool/Getty Images

Over the last several weeks, there has been an unprecedented public campaign on the part of progressives to try to pressure Justice Stephen Breyer, age 82, to resign from the Supreme Court. Despite these efforts, in an interview with CNN’s Joan Biskupic that was reported on Thursday, the justice indicated that he has not yet decided when or whether to retire. Almost immediately after the interview was published, further calls came for Breyer to step down.

There have not been many voices countering the wisdom and appropriateness of the campaign, but those criticisms are powerful. Justice Breyer is well aware of the stakes involved in the timing of his departure from the court, and the pressure applied to him only makes it more difficult for someone who decries the politicization of law to step down. But there is one fact relevant to potential retirement and the future of the court that, to my knowledge, no one has pointed out: history shows that pundits, and even presidents, are not good actuaries.

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History is replete with mispredictions about the likely longevity of potential Supreme Court nominees. When Justice John Paul Stevens was nominated in 1975 there was widespread concern that, because of a recent heart attack, he would not be on the court long. But Stevens remained on the court for 35 years, retiring in 2010. He passed away two years ago at the age of 99. When President Theodore Roosevelt nominated Oliver Wendell Holmes for the court in 1902, there were similar concerns about the length of the 61-year-old Civil War veteran’s likely tenure in office. Holmes retired from the court 30 years later, in 1932 and died in 1935 two days shy of his 94th birthday. But the best example of the problem with predicting longevity is offered by the most prominent case when considerations of age influenced a Supreme Court appointment.

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The year was 1943, and the potential nominee was Judge Learned Hand of the Second Circuit Court of Appeals. While Hand is little known to the general public today, he may be the one appellate judge every first year law student remembers, and not just because of his unforgettable name. His opinions are still the staple of law school casebooks, in subjects as diverse as constitutional law, contracts, torts, copyright, and admiralty. He is often described as the best appellate court judge of the 20th century.

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When Justice James Byrnes stepped down from the court to aid President Franklin Roosevelt’s World War II effort, Hand was an obvious candidate to succeed him. Justice Felix Frankfurter, among many others, lobbied Roosevelt for his appointment.

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But Hand was 71. When Attorney General Francis Biddle met with Roosevelt to discuss the potential candidates, they both dismissed Hand, despite his eminence and achievements. Biddle later reported they had agreed Hand was simply too “old.” Attentive to the future and the opportunity to shape the court for many years ahead, Roosevelt chose a nominee more than a generation younger than Hand. And, so, Wiley Rutledge, age 48, joined the court.

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Justice Rutledge, Roosevelt’s last appointment to the court, had a distinguished tenure, and he was a role model for one of his clerks, future Justice John Paul Stephens.

But that tenure was short. After six years on the court, Rutledge died of a stroke in 1949, at the age of 55.

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By that time, Hand, 77, was considered clearly too old for even consideration. President Harry Truman nominated Judge Sherman Minton, age 58, to fill the seat.

But Minton’s tenure was also abbreviated. He retired in 1956 at age 65 because of ill health, leaving Republican President Dwight Eisenhower to nominate the successor to Rutledge and Minton.

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Long after Rutledge had passed away and years after Minton retired, after Roosevelt, Truman, and Eisenhower each had the opportunity to fill the Supreme Court seat that Hand had been denied, Hand continued—on, on, and on. He authored the influential books The Spirit of Liberty (1952) and The Bill of Rights (1958)and he wrote countless additional important Second Circuit decisions. Hand died in 1961 at age 89, the year President John Kennedy took office. Up to his final year—some 18 years after he had been denied a Supreme Court nomination because of his age—Hand remained active on the Second Circuit, producing classic opinions on topics ranging from tax law to labor law, immigration law, and tort law.

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If he had been named to the court and stayed on until his death, Justice Hand would have become the third-oldest person to serve on the court.

The only justices who were older when they left the court: Holmes and Stevens.

The Hand story suggests three important points.

First, the life-time tenure system established by the Constitution both puts pressure on presidents to pick younger appointees over older candidates whom they might otherwise select and, at the same time, makes the happenstance of individual longevity a powerful factor in shaping constitutional law. In April, President Joe Biden established a commission of legal experts to consider various proposals for court reform. Term-limits are one of the topics they will consider, and current bipartisan proposals to establish lengthy, but fixed, term-limits for Supreme Court justices (typically 18 years) would, at least in part, address the problems created by a system of life-time tenure. If FDR had ultimately decided Hand was the most qualified candidate, he might have nominated him for the court because the advantages of picking a much younger nominee like Rutledge would have been diminished. Conversely, Justice Rutledge’s untimely death would have been less consequential for constitutional law. President Roosevelt doubtless envisioned that Justice Rutledge would serve on the courts for decades, rather than a term of a fixed period. His death after only six years on the court altered the arc of constitutional law in a way that was far greater than it would have been if he had died in the middle of a term of limited duration.

Second, nothing in life is predictable, including, above all, the tenure of life itself.

Finally, if Justice Breyer decides not to retire, those worried about the future of the liberal wing of the court may take comfort in the Hand story. News accounts report that Justice Breyer is very attentive to his health and that he has a good exercise regime. At 82, he may have many years on the court ahead.

Who knows? 82 may be the new 71.

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