Friday, April 29, 2022
Writing over at Bloomberg, ContractsProf Stephen L. Carter (right) argues that Justice Breyer cannot un-resign now that Justice Ketanji Brown Jackson (both below, left) has been confirmed. The issue arises because of Justice Breyer's somewhat unusual decision to announce his retirement during the Supreme Court's term while stating that he would remain on the Court until a successor could be confirmed. We all assume that Justice Breyer will step down once the Court completes its work in June. But what if Justice Breyer says, "JK!"?
Professor Carter maintains that, as a matter of contracts law, it is now too late for Justice Breyer to change his mind. He reviews some possible precedents for the current situation, but they are inconclusive, as constitutional history often is. Along comes contracts law to the rescue.
A resignation is an offer to modify a contract of employment by terminating employment. Once that offer is accepted, like any other contractual offer, it cannot be retracted. The near-unanimous rule is that once a replacement has been named, the resigning employee cannot retract, and this is equally true in a case such as Justice Breyer's where the employee names some future date of resignation.
As a matter of constitutional law, federal judges cannot be removed, except by impeachment. Nonetheless, Professor Carter maintains, a voluntary resignation is binding for a judge or justice, just as it would be for any other government employee. This rule just makes sense, as there have been substantial costs incurred in reliance on the promise.
I'm not sure whether I find this argument convincing, even though I agree with Professor Carter that this is the way things should work. I also agree with his assessment that the issue is unlikely to arise because Justice Breyer will undoubtedly step aside as he promised. It would be nice to put the question to the test and have it resolved as Professor Carter suggests, if only so that I could immediately Tweet at Eric Segall, "See, the Supreme Court is a court, and it is bound by legal rules; specifically, the law of contracts!"