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Stephen L. Carter

Stephen L. Carter: Ketanji Brown Jackson won’t lose her seat if Breyer ‘unretires’

What happens to Judge Ketanji Brown Jackson if Justice Stephen Breyer changes his mind and decides not to retire? The question and its variants keep coming up. After all, there’s no vacancy to be filled until Breyer actually steps down at the end of the Supreme Court’s current term. If he chooses to remain on the court — some have asked — does Jackson get the next vacancy that occurs? Or does she stay on the D.C. Circuit Court of Appeals?

For me as a contracts professor who’s 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’t. Period, full stop.

In an April 6 memorandum, the Office of Legal Counsel of the Justice Department 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 on the duties of the office remains contingent on Justice Breyer’s resignation becoming effective” — on the date the Supreme Court’s term ends.

Well and good. But the memorandum never addressed what happens if Breyer wants to stay on.

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 As recently as last fall, federal appellate judge Robert B. King rescinded his decision to move to senior status, possibly because he was unhappy with the president’s choice of a successor.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

But this is no new thing. In the fall of 1968, President Lyndon Johnson’s nomination of Justice Abe Fortas to succeed the retiring Earl Warren as chief justice collapsed after a fairly minor scandal. After Richard Nixon was elected, speculation arose that Warren might decide to stay on. But a week after the election, the New York Times reported that the chief justice’s “intention to retire has not been affected by the election” and that Warren “does not intend to amend his retirement letter.”

We can go back further. In September 1911, a federal appellate judge named Peter Grosscup announced his resignation in the wake of charges that he’d used his position for personal gain. A Texas paper labeled him “the most widely suspected judge in the United States.” President Theodore Roosevelt called him a “scoundrel.” As the allegations mounted, Grosscup changed his mind, insisting that he would remain in office because “I don’t intend to resign with any clouds hanging over me.” He dared the magazine that had published the most damaging reports to make its evidence public. The editors declined. Nevertheless, the scandal grew. In late October, realizing that his position was hopeless, Grosscup finally quit.

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

Precisely when? Cue private law.

The constitutional processes might tell us how a vacancy is filled, but when a judge’s resignation becomes binding is a question best resolved by the law of contract.

Let’s suppose we’re talking about a private employer. The usual rule is that my resignation is effective when my employer accepts it. That’s because a resignation is, functionally, a proposal to alter the contract of employment — that is, to end it. Some jurisdictions have different rules, but the courts are nearly unanimous in holding that once a replacement has been selected, my freedom to change my mind disappears.

The same legal rule applies if I resign as of a future date. If I tell my boss that I’m leaving on June 30, I might have second thoughts as the end of the month approaches. 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 held that that state employees can’t rescind resignations that have been formally accepted. Most have held that government employees can’t change their minds once the state takes action in significant reliance on the resignation. Hiring a replacement for a government employee is always deemed sufficient reliance to make a resignation legally binding — even when the replacement won’t start work until a later date.

That’s a good rule for federal judges, too: When a successor has been confirmed, the reliance has been sufficiently substantial that it’s too late too late to back out.

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

I’m not suggesting that Justice Breyer would actually change his mind; I’m indulging, for the sake of argument, those who are wondering 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 properly take the oath as his successor.

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