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No, Seriously, Stephen Breyer Needs to Retire

Today's horrifying Supreme Court ruling shows us why.

Stephen Breyer gives a speech at Harvard Law School
Harvard Law School

Today, the Supreme Court did a terrible thing. From the New York Times:

The Supreme Court ruled on Thursday that judges need not determine that juvenile offenders are beyond hope of rehabilitation before sentencing them to die in prison. The decision, concerning a teenager who killed his grandfather, appeared to signal the end of a trend that had limited the availability of severe punishments for youths who commit crimes before they turn 18.

Justice Brett M. Kavanaugh, writing for the majority in the 6-to-3 ruling, said it was enough that the sentencing judge exercised discretion rather than automatically imposing a sentence of life without parole.

Now, a civilized society would not be putting children in jail for life with no possibility of release. But this is America, so the bar is beyond low. Now, the Supreme Court’s conservative supermajority has decided to roll back whatever progress had been made towards the goal of “hmmm maybe kids should not be sent to prison forever.” In doing so, the court ripped up multiple precedents and struck a blow for everyone’s favorite lobby, the “lock minors up and throw away the key” brigade. The central people behind this shift were Brett Kavanaugh and Amy Coney Barrett, who will likely both be on the court for another 30 to 40 years.

This brings us, inexorably, to 82-year-old Stephen Breyer. The Supreme Court is a violent, vicious mess right now, and any attempts to fundamentally make it better appear to be a very long way off. There is a very simple way to make it even worse, though: Stephen Breyer dying or exiting the court when Republicans control the Senate. I’ve said it before, and now I’ll say it again: Breyer needs to retire, ASAP.


Why Hasn’t Stephen Breyer Retired Yet???

It’s not that Breyer leaving now would shift the balance of the court in a meaningful way—it would still be a 6-3, far right body. His retirement is about the next several decades—about securing at least one non-maniac on the bench for the next 35 or so years. Today’s ruling is powerful evidence of what’s in store if Breyer hangs on and then gets into a Ruth Bader Ginsburg situation. If that happens, then everyone loses a crucial chance to get a decent person on the court—and there’s no telling when the next one will arise.


RBG and the Stories We Tell Ourselves

The window for Breyer to do what he needs to do is barely open as it is. There’s a 50-50 Senate majority full of very old people, and absolutely no guarantees that it will last a full year, let alone a full congressional term. Republicans will not hesitate to block a Biden Supreme Court nominee if they ever get the chance, or to demand that Biden pick a terrible person. It is beyond imperative that Breyer step down by the end of the current Supreme Court term at the very latest.

Luckily for all of us, Breyer seems inclined to do the opposite. He’s hired a full slate of law clerks for the next term and is giving pointed speeches about how the court should be left alone. Thanks buddy. On past evidence, this is gonna work out great.