Former Supreme Court Justice Stephen Breyer indicated support on Sunday for age and term limits on the high court’s justices, saying he does not believe it is harmful to impose such rules given the impact of the current standard’s lifetime appointment.
The retired liberal justice sat down with Kristen Welker on NBC’s “Meet the Press,” where he discussed the ongoing effects of the conservative majority’s 2022 decision in Dobbs v. Jackson Women’s Health Organization. The decision, written by conservative Justice Samuel Alito, allows states to implement strict abortion bans that have since led many people to continue unwanted and unsafe pregnancies and abortions without proper access to reproductive health care.
Breyer was among the three justices who dissented on the consequential ruling that struck down Roe v. Wade and Casey v. Planned Parenthood, a decades-old precedent that protected abortion rights. The justice dissented immediately before retiring from the court at age 83, allowing for President Joe Biden to appoint liberal Justice Ketanji Brown Jackson as his replacement.
On Sunday, Breyer said that he does not believe setting age and term limits on justices “would be harmful.” Currently, serving on the Supreme Court is a lifetime appointment unless the justice decides to retire.
“I think it would have helped, in my case. It would have avoided, for me, going through difficult decisions when you retire,” the former justice told Welker. “What’s the right time? And so, that would be OK.”
The Dobbs ruling was decided by the court’s conservative justices, three of whom were appointed by former President Donald Trump. One of those justices, Neil Gorsuch, was appointed by Trump after Senate Minority Leader Mitch McConnell (R-Ky.) refused to allow then-President Barack Obama to appoint a justice to the seat left vacant by conservative Justice Antonin Scalia’s death in 2016. The delay by McConnell led to the vacancy being filled after Trump was elected to office.
Another justice, Amy Coney Barrett, was appointed by Trump to replace liberal Justice Ruth Bader Ginsburg, who died just weeks before the 2020 election that made Biden president. Ginsburg had been criticized for refusing to retire while Obama was still in office so that the Democratic president could appoint her replacement. Instead, her death during the Trump administration allowed the Republican to appoint an anti-abortion justice as her replacement, giving conservatives a supermajority in the court that overturned Roe v. Wade.
“I’ve said, and I think it’s true, I don’t think that’s harmful,” Breyer said of age and term limits. “If you had long terms, for example, they’d have to be long. Why long? Because I don’t think you want someone who’s appointed to the Supreme Court to be thinking about his next job. And so, a 20-year term? I don’t know, 18? Long term? Fine, fine. I don’t think that would be harmful.”
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Breyer’s comments come about a month after nonpartisan court watchdog Fix the Court obtained U.S. Marshals Service records that reveal 69-year-old liberal Justice Sonia Sotomayor took the unusual step of traveling with a medic. With Biden and the Senate’s slim Democratic majority facing an increasingly close election this year, the oldest Democratic-appointed sitting justice on the court is under pressure from commentators to not repeat Ginsburg’s mistake.
Last week, Breyer had an interview with The New York Times in which he expressed concern over a shift in how the high court approaches cases that come before it, as well as the increase in originalist interpretations that he believes is a “bad approach” and “doesn’t work very well.”
Citing the Dobbs decision, Breyer ― whose book criticizing textualism will be released this week ― said that the conservative-leaning high court is too focused on trying to enforce the Constitution in its original meaning, regardless of how out of touch it is with modern society. In writing for the court’s majority in Dobbs, Alito said that abortion is not protected as a constitutional right because it is not “deeply rooted in this Nation’s history and tradition.”
“If you go to look at the Constitution ― remember this, this is an important point ― go back to 1788, ’89, ’87. Go back even to just after the Civil War, when we have the 13th, 14th, 15th Amendment,” Breyer told Welker. “There were about half the population of this country that really weren’t represented in the political process, right? But they’re now part of the political process, as they should be.”
The Supreme Court is expected to next hear a major abortion case ― on access to mifepristone, a safe and commonly used abortion pill ― on Tuesday, the same day Breyer’s book is released.