Change the Court, for Good: For Starters, the Oldest Justice Should Retire While There’s a Democratic President and Senate

Stephen Breyer should announce his retirement, to take effect when the Supreme Court’s current term ends next summer. But that isn’t the half of it.

Under pressure from progressives to commit to court-packing — and pressure from just about everyone else to formally disavow the idea — just a few days before the November election, President Biden promised a national commission to examine the Supreme Court. But genuine reform of the institution is unlikely in the near term. As a first step beyond Breyer’s retirement, however, there is one easy step. Justices could commit to retire earlier in order to avoid plunging the nation into crisis.

Calls for the octogenarian Breyer’s departure are growing, in part because the presidency and the Senate have changed hands. It is also because Democrats have been so badly burned by the appointments process to the high bench in recent years.

The anger goes back to the end of Barack Obama’s presidency, when Republican and then-majority leader of the Senate, Mitch McConnell, had the effrontery to hold open the Supreme Court vacancy left by Justice Antonin Scalia’s death so Democrats couldn’t fill it. Neil Gorsuch eventually got the job in 2017 once Donald Trump took power. Obama’s nominee, Judge Merrick Garland, was left in the lurch, though he has since fetched up as Biden’s nominee to be attorney general.

But the recriminations around that seat on the Supreme Court were nothing compared to the divisive battle around Trump’s next nominee, Brett Kavanaugh, who was charged with an act of sexual predation in high school, and survived the confirmation process by the smallest of margins.

Even so, both Gorsuch and Kavanaugh replaced right-wingers, leaving the court’s ideological balance roughly split. Ruth Bader Ginsburg’s death changed all that. It led to a national debate about the role of the Supreme Court in this country with no precedent in nearly a century.