In an opinion piece published in The New Republic on April 28, Harvard Law School Professor Randall Kennedy takes the stance that Justices Ruth Bader Ginsburg ’56-’58 and Stephen Breyer ’64 should retire soon, suggesting that a calculated and timely exit would ensure the Democratic selection of justices who share their judicial philosophies.

Writes Kennedy: “…federal judges have a unique power to determine when their judicial careers should end and thus possess an important, though oft-overlooked, way of influencing the trajectory of the federal bench. … If Ginsburg or Breyer (or both) announced retirement at the end of this Supreme Court term (pending the confirmation of successors), they could virtually guarantee that President Obama would get to select their replacements. … Even the most recalcitrant Republican senators seem to acknowledge that Supreme Court vacancies should be filled without undue delay. That is why Ginsburg and Breyer need to act soon.”

Kennedy is the Michael R. Klein Professor of Law at HLS and author of the forthcoming book Persistence of the Color Line: Racial Politics and the Obama Presidency (Knopf Doubleday 2011).

The Case for Early Retirement

By Randall Kennedy

Justices Ruth Bader Ginsburg and Stephen Breyer should soon retire. That would be the responsible thing for them to do. Both have served with distinction on the Supreme Court for a substantial period of time; Ginsburg for almost 18 years, Breyer for 17. Both are unlikely to be able to outlast a two-term Republican presidential administration, should one supersede the Obama administration following the 2012 election. What’s more, both are, well, old: Ginsburg is now 78, the senior sitting justice. Breyer is 72.

Is such a suggestion an illicit politicization of the Court? No. It is simply a plea for realism, which is often difficult to muster in the face of the idolatry that suffuses popular thinking about the justices and their role in American democracy. … Read the full op-ed at »