Justice Stephen Breyer Deserves to Remain on the Court

Justice Stephen Breyer answering questions at Georgetown University Law Center

Image by USA Today

Justice Stephen Breyer answering questions at Georgetown University Law Center

The passing of former Justice Ruth Bader Ginsburg on September 28, 2020 caused the discussion and debate on several issues ranging from adding more justices to the U.S. Supreme Court, all the way to forcing retirement on the most senior justices. One of those justices is Stephen Breyer. Currently, the justice is 83-years-old, is in his 27th year on the court and is one of the three left-leaning justices. Democrats are currently suggesting that Justice Breyer should retire while President Joe Biden serves the nation in order for him to pick someone that represents the left’s views. Furthermore, President Biden hinted that if Justice Breyer decides to retire, his replacement is U.S. Court of Appeals for the District of Columbia Circuit, Judge Kentaji Jackson. If nominated, she would be the first African-American woman to serve on the court. 

Justice Breyer should temporarily remain on the court due to his extensive expertise in the court of law, the people’s request involving elements of ageism, the justice having no health conditions that can harm his position and the right to see when his retirement is fit. 

Justice Breyer’s extensive expertise in the court of law continues to merit his spot on the court. As a magna cum laude graduate of Harvard Law School and an editor at the Harvard Law Review, Justice Breyer’s educational background prepared him for his role on the court. His oral arguments should be taken into account, for they are not only extremely well-made, but bring comic relief to the formal court. He’s most notable for his majority decision in NLRB v. Ashcroft, which ruled that the president cannot use his authority to appoint public officials while the U.S. Senate is in recess. The decision limited the president’s authority in certain situations, allowing balance between powers. His most notable dissent was in Eldred v. Ashcroft, which ruled that the plaintiff could no longer use the materials he was publishing. He strongly dissented by claiming that the Copyright Act of 1976 extended the use of such resources. Despite what others may say, his extensive, thoughtful and life-altering decisions continue to merit his role on the court. Unfortunately, his merit is overlooked by the people. Those who ask for his retirement are only focusing on his age. The request for his retirement should solely focus on what he contributes to the court. There’s a reason why he was chosen to serve and it’s clearly not because of his age, but trajectory and experience. Everyone’s role in the workplace should be judged because of their merit, not because of what could happen to them in the future. 

Age discrimination is illegal in the workplace and that applies to the U.S. Surpeme Court. According to the U.S. Equal Employment Opportunity Commission and the “Age Discrimination in Employment Act” (ADEA), discriminating or treating less favorably those who are over the age of 40 years old is a punishable offense. Justice Breyer currently is facing age discrimination because politicians and government figures are already persuading the justice to retire because of the time he’s spent on the court and his overall age. Furthermore, being a justice on the supreme court is a life-time appointment, meaning Justice Breyer can continue to fulfill his duty on the court however many years he pleases to do so. Therefore, there’s some hypocrisy in government figures asking for his retirement, due to the U.S. Constitution outlining the terms of employment on the court and their duty to practice loyalty towards it. Despite ageism being one of the most overseen forms of discrimination in the workplace, it’s still against the law and Justice Breyer’s position shouldn’t be jeopardized because of it. 

Justice Breyer is in exceptional health condition. The justice currently doesn’t suffer from any health conditions that are known to the public that can potentially impede him from performing his role on the court. However, there’s other justices that are younger than Justice Breyer that have severe medical conditions and haven’t retired, such as Chief Justice John Roberts with episodes that lead experts to suspect he may suffer from epilepsy, and Justice Sotomayor with Type-1 Diabetes. Even though age can simply prompt justices to leave the court, they can’t be forced out by the government or the people, unless other extenuating circumstances take place. If it’s further analyzed, the people are now asking for Justice Breyer to retire because of Justice Ginsburg’s decision to not leave the court, despite having pancreatic cancer. However, that decision shouldn’t fall back on Justice Breyer. The thought that he must be seriously ill due to his age nearing that of Justice Ginsburg’s is not comparably fair because their circumstances differ drastically in terms of health. As previously stated, he doesn’t suffer from any severe medical condition, unlike Justice Ginsburg. 

Justice Breyer could ideally retire now while a left-leaning president serves the nation. However, the people’s request pursues the idea of ageism and lacks the acknowledgement of his merit and service. It is a sign of disrespect. His role and representation of the left-side’s views are at stake because of someone’s previous decision, making him an unfairly chosen victim that is now apparently responsible for furthering the political agenda of Democrats. Justice Breyer, a man who dedicates his life towards the rule of law and defends American citizens’ rights, deserves appreciation and to continue his role on the court. That’s the least we can do to thank the on-going 27 years of his dedicated service to our nation.