For those few readers interested in the metaphysics of judicial retirements, I offer a couple of follow-on thoughts to my post from a couple of weeks ago in which I explained why I believe that Justice Breyer has not yet taken the action necessary to effectuate his retirement at the end of the Court’s term.
Let me reiterate that this is a purely academic inquiry, as it is clear that Breyer will resign. Let me also emphasize that this issue is distinct from the question whether President Biden has validly prospectively appointed Judge Ketanji Brown Jackson to Breyer’s seat, with such appointment taking effect once the seat is vacant.
1. At the close of the Court’s last scheduled argument session on April 27, the Chief Justice stated that “Justice Breyer has announced his retirement from the Court, effective when we rise for the summer recess.” The Chief further stated that “at the appropriate time, we will in accordance with tradition and practice, read and enter into the record an exchange of letters between the Court and Justice Breyer marking his retirement.”
I wouldn’t read the Chief’s statement that Breyer “has announced his retirement from the Court” as staking out a legal position that Breyer’s January 27 letter to President Biden suffices to effect Breyer’s retirement “when the Court rises for the summer recess this year” (Breyer’s language in his letter). The Chief, it would seem, is just speaking in the vernacular. In the same way, one might say that Biden nominated Judge Jackson to the Supreme Court on February 25, without taking a position on whether the actual nomination, for purposes of the Appointments Clause of the Constitution, took place when Biden submitted his nomination of Jackson to the Senate on February 28.
Conversely, I wouldn’t read the Chief’s statement about a future “exchange of letters between the Court and Justice Breyer marking his retirement”—an exchange that I assume will take place on the last day of the term—as staking out a legal position that such an exchange is necessary to effect Breyer’s retirement. But it should be sufficient to do so, and will thus render irrelevant whether Breyer’s January 27 letter was itself sufficient.
2. Even if Breyer’s January 27 letter would suffice to effect his retirement at the end of the term, there is the separate—and, again, entirely academic—question whether Breyer could still retract such a retirement decision.
Back in 1974, the Department of Justice’s Office of Legal Counsel had occasion to opine whether a federal judge could withdraw his decision to retire. (OLC provided me a redacted copy of its opinion years ago, but I am only now having occasion to make it public.) In that instance, the judge had sent President Nixon a letter dated February 12, 1974, setting forth his decision to retire from regular active service, effective April 1, 1974, because of permanent disability. But eight days later, he sent Nixon a second letter stating that (in OLC’s summary) “he had received further medical advice which has led him to believe that he is not permanently disabled” and therefore wished to withdraw his election to retire.
OLC’s opinion cites with approval “a number of recent court rulings” that have “established” that “a resignation to take effect in the future may be withdrawn prior to its effective date, especially where, as here, it had not been accepted prior to that time.” It also invokes an “additional consideration” raised by the statutory provision governing permanent disability.
OLC’s advice generally governs the executive branch, so it is an interesting question whether it means that Breyer could retract his January 27 letter—and, if so, whether the current OLC and the White House would abide by the 1974 opinion. On the one hand, the 1974 opinion indicates that it might matter whether the president has “accepted” a judicial retirement. On any coherent understanding of that concept, it seems plain that Biden has accepted Breyer’s prospective retirement. On the other hand, it is difficult to imagine that the White House would try to, or would be able to, force Breyer to go ahead with his retirement if he in fact were to change his mind.
What all of this does suggest is that, as law professor Richard Re argues more extensively in “The Peril and Promise of SCOTUS Resignations,” it would be good for Congress to craft a federal statute that would provide clarity on how Supreme Court justices and other federal judges should effect their retirement.