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.
