Ketanji Brown Jackson will not lose his place if Breyer ‘retires’

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What happens to Judge Ketanji Brown Jackson if Judge Stephen Breyer changes his mind and decides not to retire? The question and its variants keep popping up. After all, there is no vacancy to be filled before Breyer actually resigns at the end of the current term of the Supreme Court. If he chooses to stay on the field – some have asked – will Jackson get the next vacancy that arises? Or will she stay in the DC Circuit Court of Appeals?

For me as a contract professor, who has also spent more than three decades writing and teaching about the Supreme Court selection process, the answer is simple: Breyer could have changed his mind earlier, but now he can not. Period, period.

In a memorandum on April 6, the Justice Department’s Office of Legal Advisers listed a number of precedents and concluded that even with Breyer still on the bench, Jackson could receive her formal commission from the president. But her “entry into office is still conditional on Judge Breyer’s resignation coming into force” – on the date the Supreme Court’s term ends.

Good and well. But the memo never addressed what happens if Breyer wants to stay.

It is not unreasonable to ask the question. As recently as last fall, Federal Appeals Judge Robert B. King revoked his decision to switch to senior status, possibly because he was unhappy with the president’s choice of successor. Over the past two decades, a number of federal and state judges have changed their minds about previously announced retirements.

But this is nothing new. In the fall of 1968, President Lyndon Johnson’s nomination of Judge Abe Fortas collapsed to succeed the outgoing Earl Warren as Chief Justice following a rather minor scandal. After Richard Nixon was elected, speculation arose that Warren could decide to stay. But a week after the election, the New York Times reported that the chief judge’s intention to retire has not been affected by the election, and that Warren “has no intention of changing his retirement letter.”

We can go further back. In September 1911, a federal appeals judge named Peter Grosscup announced his resignation in the wake of accusations that he had used his position for personal gain. A Texas newspaper described him as “the most suspicious judge in the United States.” President Theodore Roosevelt called him a “rogue.” As the accusations increased, Grosscup changed his mind and insisted he would remain in office because “I do not intend to resign with any clouds hanging over me.” He dared the magazine, which had published the most damaging reports, to publish his evidence. The editors said no. Nevertheless, the scandal grew. In late October, when he realized his position was hopeless, Grosscup finally resigned.

But imagine now that after his first resignation, a successor had been nominated and perhaps confirmed. At some point in that process – so I would argue – Grosscup would have lost the right to change his mind.

Exactly when? Cue private law.

The constitutional processes can tell us how a vacancy is filled, but when a judge’s resignation becomes binding is an issue that is best resolved by contract law.

Let’s assume we’re talking about a private employer. The usual rule is that my termination is valid when my employer accepts it. This is because a termination is functionally a proposal to change the employment contract – that is, to terminate it. Some jurisdictions have different rules, but the courts almost agree that once a replacement has been elected, my freedom to change my mind disappears.

The same rule of law applies if I resign from a future date. If I tell my boss I’m leaving on June 30th, I might be thinking about when the end of the month is approaching. But once my employer has accepted my resignation and hired a replacement, I lose the legal right to change my mind.

What about government employees? Courts have long applied the same rules. Some jurisdictions have ruled that civil servants cannot revoke redundancies that have been formally accepted. Most have argued that state employees cannot change their mind once the state takes action in significant dependence on the resignation. Hiring a replacement for a government employee is always considered to be sufficient confidence to make a dismissal legally binding – even when the replacement only starts working at a later date. (1)

It’s also a good rule of thumb for federal judges: Once a successor has been confirmed, trust has been high enough that it’s too late to retire.

One can object that federal judges in general and Supreme Court judges in particular are special. In some respects they are. For example, unless they become federal, they have a job until voluntary retirement or death. In addition, their salaries cannot be reduced while in office. But apart from these constitutional guarantees, they are simply employees of the government. If they decide to travel, they should be subject to the same rules as everyone else.

I’m not suggesting that Justice Breyer would actually change his mind; I pamper, for the sake of argument, those who wonder what the consequences might be if he did. And the answer is that the law is clear: When the current Supreme Court term ends, Breyer’s resignation will be effective, and Judge Jackson will rightly take the oath of office as his successor.

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(1) The only exceptions I have found are cases where a statute specifically governs when termination by the agency in question takes effect.

This column does not necessarily reflect the opinion of the editorial staff or Bloomberg LP and its owners.

Stephen L. Carter is a columnist for Bloomberg Opinion. He is a professor of law at Yale University and was an assistant to U.S. Supreme Court Justice Thurgood Marshall. His novels include “The Emperor of Ocean Park,” and his most recent nonfiction is “Invisible: The Forgotten Story of the Black Woman Lawyer Who Took Down America’s Most Powerful Mobster.”

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