Seated from left in this 2010 photo are Justices Clarence Thomas and Antonin Scalia, Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy and Ruth Bader Ginsburg. Standing from left are Justices Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito Jr. and Elena Kagan.
Supreme Court justices are, with some notable recent exceptions, generally circumspect. They can't or won't say much when commenting publicly on matters before the court, those that may come before the court and, in some cases, those that already have. So when ABC's "This Week" aired a rare interview with Supreme Court Justice Stephen G. Breyer on Sunday, his response to questions about how Republican presidential candidate Donald Trump could influence his plans to retire was, not surprisingly, vague.
Breyer told ABC's Jonathan Karl that he is not supposed to have an opinion on the constitutionality of Trump's campaign trail proposals, such as his idea to ban Muslim immigrants. When asked directly whether the election outcome -- specifically Trump entering in the White House -- would determine whether he would remain on the court or retire, Breyer told Karl he was responding to the question "indirectly," with intention.
KARL: Well, (INAUDIBLE), one more on this. It's interesting, Trump, in making the case for his ban on Muslims coming into the country, cites FDR's internment of the Japanese.
What do you make of that?
BREYER: That's his affair.
KARL (voice-over): Appointed by Bill Clinton in 1994, Breyer will be 78 when the next president is sworn in. Three other justices will be over 80.
KARL: Don't you take in as a factor who is the person that will be nominating my replacement?
BREYER: The question you're really asking me is if this person is president, would you not retire?
KARL: Right.
BREYER: If that person is president, you would retire.
KARL: Donald Trump, he's president of the United States. Ted Cruz is president of the United States.
You wouldn't decide, you know what, I was thinking about retiring but I'm going to stick around for a few more years?
BREYER: It's a highly personal decision. You have to be able to do the job. I tend to think, though it's in my self-interest (INAUDIBLE) that I tend to think that experience does help.
KARL: But I'm asking you just --
BREYER: I know you --
KARL: I'm asking you a direct question, you will -- will who is president be a factor in --
BREYER: I know you're asking me a direct question and I'm giving an indirect response --
(LAUGHTER)
But the conversation did highlight a kind of sleeper issue scarcely mentioned in public since the 2016 presidential campaign began in earnest. Assuming that the composition of the court remains unchanged, Breyer will celebrate his 78th birthday by the time the next president takes office in January 2017. And three other justices will be older than 80.
The situation suggests that the next president may have an opportunity to appoint one or even several new members to the court. The latter scenario may be unlikely, as members of the Supreme Court have rarely retired in groups or even closely connected waves. The nation's longest-serving member of the Supreme Court, Justice William O. Douglas, served for 36 years, 7 months and 8 days. He joined the court in 1939 and left it in 1975. Justice Oliver Wendell Holmes Jr. was 90 when he retired after 30 years on the court.
Supreme Court appointments do, after all, come with a lifetime term. However the average tenure sits around 16 years, according to the Supreme Court's data. As Breyer delicately implied, the job must be performed by men and women with the ongoing ability to engage in the court's often complicated work. There is a need for both experience and stamina.
Still, the prospect of four justices well over the age of 75 (and three over the age of 80) does raise an intriguing possibility -- and one other matter for voters to consider.
