The question of how exactly a Supreme Court justice or lower-court judge puts into effect a decision to retire is a surprisingly complicated one, and all the more so when the date of the retirement is at some point in the future. There is no federal statute that addresses the matter. For justices, the traditional practice, as I understand it, has been to send a letter to the president setting forth a decision to retire. But I don’t believe that lower-court judges have generally taken that approach. So while a letter to the president might well be sufficient, there is no reason to think that it is necessary. And why would it be, given that the justice is not the president’s subordinate?
In this post, I will address the question whether Justice Breyer has actually announced a decision to retire at a designated time. Specifically, will Breyer’s January 27 letter to President Biden suffice to effect Breyer’s retirement “when the Court rises for the summer recess this year”? Or will Breyer need to take some further action?
Two clarifications at the outset: (1) I am not addressing the distinct question whether Breyer could retract an announced decision to retire at a date, or upon an occurrence, in the future. I am addressing only whether he has in fact announced such a decision. (2) This is a purely academic inquiry. By engaging in it, I do not mean to suggest that there is any prospect at all that Breyer won’t in fact retire at the end of the Court’s term.
Let’s focus on the two key sentences in Breyer’s letter:
I am writing to tell you that I have decided to retire from regular active judicial service as an Associate Justice of the Supreme Court of the United States, and to serve under the provisions of 28 U. S. C. § 371(b). I intend this decision to take effect when the Court rises for the summer recess this year (typically late June or early July) assuming that by then my successor has been nominated and confirmed.
In his first sentence, Breyer straightforwardly announces a decision to retire, but he doesn’t set forth the critical ingredient of when. In his second sentence, Breyer, I would argue, doesn’t in fact specify a time on which his decision will take effect. Rather, he merely states what he “intend[s]” as of January 27. His phrasing of “I intend this decision to take effect ….” falls well short of “This decision will take effect ….” Indeed, Breyer makes explicit that his then-current intention rests on his “assuming that by then my successor has been nominated and confirmed.”
Breyer might instead have written: “My decision will take effect when the Court rises for the summer recess this year if my successor has been nominated and confirmed by then, and, if not, then upon the subsequent confirmation of my successor.” But as law professor Richard Re points out in a very recent paper (“The Peril and Promise of SCOTUS Resignations”), Breyer might well have worded his letter as he did in order to give him “wiggle-room” in case “Breyer’s would-be replacement became stalled” and he wanted to prevent a Republican president elected in 2024 from being able to appoint his successor.
Let’s also compare Breyer’s January 27 letter to the retirement letters of Justices O’Connor, Souter, Stevens, and Kennedy. The letters from O’Connor, Stevens, and Kennedy all clearly announce decisions to retire.
O’Connor: “This is to inform you of my decision to retire from my position as an Associate Justice of the Supreme Court of the United States effective upon the nomination and confirmation of my successor.”
(Longtime readers with excellent memories might recall that way back in 2010 I raised the separate question whether O’Connor had fully retired from judicial service (under 28 U.S.C. § 371(a)) or had chosen to remain eligible to serve on the lower courts (under 28 U.S.C. § 371(b)).)
Stevens: “I shall retire from regular active service as an Associate Justice, under the provisions of 28 U.S.C. § 371(b), effective the next day after the Court rises for the summer recess this year.”
Kennedy: “This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b).”
By contrast, Souter, much like Breyer, merely states what he “intend[s]” to do: “When the Supreme Court rises for the summer recess this year, I intend to retire from regular active service as a Justice, under the provisions of 28 US.C. § 371(b)(l).”
So the question becomes whether and how Souter later effected a firm decision to retire. A sufficient answer, it would seem, is provided by the touching exchange of letters between Justice Souter and the other justices on June 29, 2009. In their letter thanking Souter for his service to the Court and for “the privilege of your sturdy friendship,” the other eight justices refer (imprecisely, in my view) to the earlier “announcement of your decision to retire.” As part of his response, Souter states, “I will not sit with you at our bench again after the Court rises for the Summer this time.”
It’s reasonable to expect that Breyer and the other justices will have a similar exchange of letters at the end of this term in which Breyer can make crystal clear that he is actually retiring. But until he does so through that or some other means, I do not believe that he has taken the action necessary to effectuate his retirement at the end of the Court’s term.