In 1965, President Lyndon Johnson wanted to put his close advisor, Abe Fortas, on the Supreme Court, but he had a problem: There was no vacancy at the time. Johnson had an ingenious solution: He offered to make Justice Arthur Goldberg the Ambassador to the United Nations, and told Goldberg the position would allow him to play a critical role in ending the Vietnam War. The plan worked. Goldberg went to the U.N., and Fortas joined the Court.
More than five decades later, Democrats are rightly frustrated by 83-year-old Justice Stephen Breyer’s refusal to retire and allow President Joe Biden to name a younger replacement. But Johnson’s move to get Fortas on the Court provides a roadmap for easing Breyer off of it: Biden needs to make Breyer an offer he can’t refuse.
The Breyer retirement problem is by now well known. The Supreme Court already has a 6-3 far-right majority intent on dismantling reproductive freedom, ending affirmative action, hamstringing gun control, and hollowing out other critical rights. This majority will likely be in place for many years, possibly decades.
The conservative majority is largely the result of the Republicans’ vastly superior gamesmanship in getting their people on the Court and keeping them there. Conservative justices have been adept at handing their seats off to fellow conservatives. Justice Anthony Kennedy retired in 2018, while in good health, allowing President Donald Trump to fill his seat with Justice Brett Kavanaugh. Justice Ruth Bader Ginsburg, on the other hand, resisted calls for her to retire when President Barack Obama could have named her replacement. Instead, she died in office, and Trump filled her seat with Justice Amy Coney Barrett mere days before the 2020 presidential election.
Republicans have also strengthened their hand by naming young justices to these life-tenured positions; Barrett was 48 when she was nominated, while Ginsburg was 60. And when presented with the opportunity, they have resorted to outright theft. Just four years after Fortas’s confirmation, the Nixon administration used the threat of (baseless) criminal charges to force him to resign, allowing the president to fill his seat. Famously, Kentucky Senator Mitch McConnell used his power as Senate Majority Leader to refuse to give Obama’s 2016 nominee, Merrick Garland, a hearing. In early 2017, the newly elected Trump tapped Neil Gorsuch instead.
Ambassador to the United Nations (and former Supreme Court Justice) Arthur Goldberg
When it comes to the Supreme Court, Democrats need to drastically up their game, and the place to start is by making sure that Breyer retires and his seat is filled by another Democratic appointee. The window for Biden to fill it could close at any moment: In an evenly-divided Senate, with Vice President Kamala Harris’s vote required to break party-line ties, if even a single Democratic senator dies or leaves office, Democrats might not have the votes to confirm Breyer’s successor. And it is possible, perhaps likely, that Republicans will take control of the Senate in next year’s elections, ensuring that if Breyer leaves, Biden would be unable to fill the vacancy. (In fact, McConnell has already all but promised to block a Biden nomination if he can.)
Despite his well-publicized statements about not believing justices should be viewed as political actors, it is hard to believe that Breyer, who has been a steady liberal (if a centrist one) on the Court, wants his seat to fall into Republican hands. It is likely that he simply enjoys his job and does not want to end up in the sort of unhappy retirement Justice Sandra Day O’Connor famously did.
The key to getting Breyer to step down, then, is not asking him to retire, but rather offering him a new position that he might enjoy even more. One shrewd move would be for Biden to offer Breyer the position of Administrative State Czar, charged with completely rethinking the system of federal agencies that together run every aspect of the federal government, from the military to energy policy to delivering the mail. One of Breyer’s deepest loves—hard though it may be to believe—is the regulatory state. I saw this firsthand when I took his year-long administrative law course at Harvard Law School, where his eyes lit up as he discussed automobile air-bag standards. Earlier in his career, as a Senate staffer, he specialized in subjects like airline deregulation, and as a legal scholar he has churned out scholarship on such scintillating (to him, no doubt) topics as Breaking the Vicious Circle: Toward Effective Risk Regulation.
If President Johnson could lure Arthur Goldberg away from the Supreme Court when he was part of a vibrant liberal majority, President Biden should be able to persuade Stephen Breyer to leave an increasingly powerless liberal minority.
Our vast federal government infrastructure came about haphazardly—some at the time of the nation’s founding, much of it in response to the crisis of the Great Depression. But there has been little high-level thinking about how the whole agency regime should fit together. Breyer could lead an office or head up a commission to look backward, at how the turf lines have been drawn among existing agencies, and forward, to help agencies prepare for 21st-century problems from the rise of cryptocurrency to the possibility of mass unemployment due to automation and artificial intelligence. Breyer could also help the federal government think about how to respond if the Court’s conservative majority issues major rulings reducing the power of federal agencies, as it almost certainly will very soon.
Alternatively, Biden could seize on Breyer’s love of Europe by making him European Affairs Czar. In this role, he could be charged with thinking deeply about, for example, how the United States should relate to post-Brexit Great Britain and Europe against the backdrop of a rising China and an increasingly aggressive Russia. This assignment could come with some kind of professorship at Oxford or Cambridge, which should not be too hard to arrange. Or if Biden wanted to keep things simple and hew closely to the Goldberg model, he could appeal to Breyer’s well-known Anglophilia and name Breyer Ambassador to the United Kingdom.
The main obstacle to getting justices like Breyer or Ginsburg to step down is how unappealing the role of retired justice generally is. Most justices who leave the Court finish out their careers in a zone of awkward semi-relevance, delivering politely received lectures before law school audiences and occasionally sitting by designation in the federal courts of appeals. It is not surprising that someone like Breyer needs something more in order to make retirement an appealing option.
Biden, however, can offer Breyer a new role that is better than his current one. If Breyer remains on the Court, he will almost certainly end his tenure writing feckless dissenting opinions from a series of far-right rulings. And he will have to endure endless questions from reporters and members of the public about why he is not retiring. That sounds like an unpleasant way to finish out his career in public service, especially when the alternative is helping to reimagine the workings of the federal government—or a plum diplomatic assignment in a country of his choice.
If Johnson could lure Goldberg away from the Court when he was part of a vibrant liberal majority, Biden should be able to persuade Breyer to leave an increasingly powerless liberal minority. Breyer could take on one more great challenge as a capstone to his career—and win accolades for doing the right thing.
