The Washington PostDemocracy Dies in Darkness

Opinion The lessons of an avoidably unseemly Supreme Court retirement

Supreme Court Justice Stephen G. Breyer holds a copy of the Constitution as he announces his retirement at the White House on Jan. 22. (Andrew Harnik/AP)
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There is an unavoidable political aspect to what the Supreme Court does, and the way in which presidents nominate them is highly political. Politics can be nasty. Ergo, it’s lamentable but not surprising that a certain unseemliness surrounded Justice Stephen G. Breyer’s retirement.

This is not the fault of Breyer, 83. Rather, progressive Democrats were determined to eliminate even a theoretical chance that Breyer could remain until Republicans won back the Senate or White House, gaining control over the succession, as happened when Ruth Bader Ginsburg, overconfident that Hillary Clinton would win the 2016 election, lingered into Donald Trump’s presidency — then died in 2020 at 87.

Progressives openly campaigned for Breyer to go. Understandable as it might have been from the Democrats’ perspective, the pressure — including, apparently, a White House leak of his retirement plans — demeaned a decent public servant. And it undercut the message he wanted to emphasize as he left: the need to maximize the court’s political independence, however imperfect it might be.

This is the price we pay for not taking Andrew Johnson’s advice. The 17th president proposed a set of constitutional amendments which would have greatly reduced any drama around Breyer’s retirement, and previous ones, for that matter.

To be sure, Johnson is not usually associated with constitutional reform. Deservedly impeached — and undeservedly acquitted by the Senate — in 1868, Johnson, Abraham Lincoln’s former vice president, who gained the presidency upon Lincoln’s assassination in 1865, was a volatile racist. He opposed the 14th Amendment and other measures providing equal rights for formerly enslaved Black people.

Here's what happens after Justice Stephen G. Breyer retires from the Supreme Court – and how President Biden will pick a successor. (Video: The Washington Post, Photo: Bill O'Leary/The Washington Post)

Yet even history’s odious figures have good ideas, or at least intriguing ones. After surviving impeachment — and learning he would not be any party’s presidential nominee — Johnson offered his constitutional reforms to Congress in July 1868.

One would have limited all federal judges, including Supreme Court justices, to a single 12-year term. (Upon ratification of the amendment, the president would divide the incumbent judiciary into three groups with terms of four, eight and 12 years each, to jump-start turnover.)

Johnson’s amendment would have precluded today’s ultrahigh stakes Supreme Court politics by turning personnel changes into routine events occurring at staggered — and foreseeable — intervals, without regard to partisan control of the Senate or White House.

The idea looks even more transformational when viewed in conjunction with his other proposed amendments.

Johnson also would have replaced state legislatures’ power to select U.S. senators with direct popular election. And he would have substituted a single, non-repeatable, six-year presidential term for what was then four years with unlimited possibility for reelection.

Neither an electoral college nor a direct election would pick the president. Instead, there would be a hybrid system: The states would still have one elector per senator and representative, but each state would be divided into districts, of equal population, one for each elector; then the districts would choose electors by popular vote. If no candidate got a majority of electoral votes, a runoff between the top two finishers would occur; a runoff tie would go to the candidate who won the most states. (Unlike a direct popular election, this would leave states in charge of the process, with no need for a new federal apparatus.)

Johnson’s motives are not entirely clear, though judicial appointments were a source of major political tension in his time — as in ours. The pro-civil rights “radical” Republican Congress had reduced the Supreme Court to seven members so Johnson could not fill a vacancy. (Congress restored the court to nine when Republican Ulysses S. Grant became president in 1869.)

A pro-Union Democrat from Tennessee, whom Lincoln put on his 1864 ticket to show wartime national unity, Johnson had risen in politics as a supporter of President Andrew Jackson. As he explained in his proposal to Congress, he wanted to avoid a repeat of the 1824 election, which Jackson lost on a vote in the House of Representatives, necessitated because none of four major candidates got an electoral college majority — though Jackson had gotten the most, as well as the most popular votes.

Our current political system actually incorporates Johnson’s plan — partially. Direct election of senators began in 1913, upon ratification of the 17th Amendment. The 22nd Amendment established a two-term limit for presidents in 1951.

On net, this appears marginally to have increased politicization of Supreme Court nominations — by making them an election issue for senators, and forcing presidential turnover, without any offsetting reduction in judicial tenure.

Johnson presented his amendments as a package; in combination, they would make major federal offices both less permanent and more reflective of popular majorities. Very Jacksonian — but not inconsistent with contemporary progressive goals.

They would have obviated hassles over seats on the Supreme Court and, possibly, worse risks, such as — Johnson warned — the election of a president when “the House of Representatives should assume the power arbitrarily to reject the votes of a State which might not be cast in conformity with the wishes of the majority in that body.” Sound familiar?