Former Justice Breyer Says He Is Open to Supporting a Supreme Court Age Limit

Justice Stephen G. Breyer, the liberal judge who retired from the Supreme Court in 2022, said in an interview aired on Sunday that he would be open to supporting an age limit for the justices.

“Human life is tough, and moreover, you get older,” Justice Breyer, 85, said during an interview on NBC’s “Meet the Press.” “When you’ve been there quite a while, other people also should have a chance to do these jobs. And at some point, you’re just not going to be able to do it.”

Justice Breyer suggested that an 18- or 20-year term could dissuade members of the court from “thinking about the next job” just as effectively as a lifetime appointment does now. He retired reluctantly in 2022 after mounting calls from liberals who wanted to ensure that the 6-to-3 conservative majority on the court did not get larger after an untimely death or resignation. President Biden then appointed Ketanji Brown Jackson, once a law clerk for Justice Breyer, to the Supreme Court that same year.

An age limit “would have avoided, for me, going through difficult decisions on when you retire and what’s the right time,” Justice Breyer said.

He also reiterated his criticism of the conservative Supreme Court majority and its decision to overturn Roe v. Wade, referring to his dissent in the 2022 case. Justice Breyer — along with Justices Sonia Sotomayor and Elena Kagan — said in the dissent that the majority’s opinion that a right to terminate pregnancy was not “deeply rooted” in the history and tradition of the United States would mean “all rights that have no history stretching back to the mid-19th century are insecure.”

Justice Breyer said on Sunday that such a reading of the Constitution, which focuses on the text and the original intent of its writers — a legal doctrine often referred to as originalism — “doesn’t work very well” because it prevents judges from doing what they think is right and forces them to “be bound by the text.”

In a forthcoming book, Justice Breyer calls originalists on the Supreme Court stunningly naïve in their claim that overturning Roe v. Wade would simply return the question of abortion to the political process. He said on Sunday that he had tried to warn the conservative majority that Roe’s demise would lead to more lawsuits challenging state-level abortion bans.

“What’s going to happen when a woman’s life is at stake, and she needs the abortion?” Justice Breyer asked during the interview. “Do you think if a state forbids that, then that won’t come to the court? We thought it probably would. And we thought there will be a lot of issues coming to the court coming out of the decision to overrule Roe v. Wade.”

The retired justice’s new book is set to be published on Tuesday, the day the Supreme Court hears a major case on access to pills used to terminate pregnancies.