Any number of Washington, D.C., law firms with Supreme Court practices would likely pay top dollar for the services of a retired Supreme Court justice. After all, that person would have intimate and unique knowledge about the deliberative styles and legal decision-making processes of most sitting justices, providing a potentially huge advantage over rival litigants.
For retiring Supreme Court Justice Stephen Breyer, going the law firm route could potentially mean a multimillion-dollar payday. It’s a route a few previous justices have gone, in different ways.
Justice Arthur Goldberg left the Supreme Court in 1965 to become United States ambassador to the United Nations under President Lyndon Johnson, a role in which he lasted only three years. Goldberg later accepted a senior partnership with the New York law firm Paul, Weiss, Rifkind, Wharton & Garrison. And Justice Abe Fortas, after leaving the Supreme Court in 1969, founded his own firm, Fortas and Koven. Fortas maintained a successful and lucrative law practice until his death in 1982.
Breyer, though, doesn’t necessarily need the money. According to Supreme Court financial disclosure forms, Breyer is among the wealthiest justices with a net worth reaching as high as $16 million (precise valuations aren’t required to be listed, only ranges of financial holdings.)
Breyer has largely been out of the limelight since President Joe Biden nominated federal appeals court Judge Ketanji Brown Jackson to replace him.
Russell Wheeler, a governance studies expert with the Brookings Institution, told the Washington Examiner Breyer will likely remain active in the legal world in some capacity. That could include teaching, book writing, or sitting on circuit court panels.
“I’m sure he will go on the lecture circuit,” Wheeler said. “He probably won’t make big bucks on the lecture circuit, but that’s not his goal, anyway. And he’ll probably write some books.”
Since 1937, retired Supreme Court justices have been permitted to acquire “senior status” and maintain their service to subordinate federal courts. Any retired high court justices can serve on panels of U.S. courts of appeals or U.S. district courts, according to federal law (28 U.S.C. 294), though only if they are assigned by the chief justice.
When justices retire, they are entitled to a lifelong pension equivalent to their full salary so long as they have served for 10 years and if their age and years on the Supreme Court total to the amount of 80, Lyle Solomon, a principal attorney at Oak View Law Group in California, told the Washington Examiner.
“Associate justices of the Supreme Court who choose to retire at the age of 70 after 10 years of work or at the age of 65 after 15 years on the job are eligible to earn their full highest income, usually their retirement wage for the rest of their lives,” Solomon said, citing the federal statute’s service requirements under 28 U.S.C. 371.
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The attorney added that justices who retire in excellent health with no disabilities are “obligated” to continue activities within the legal community and to execute “a minimum of judicial tasks each year in exchange for this lifetime pension.” As of January 2020, associate justices of the Supreme Court earned an annual salary of $265,600, while the chief justice was paid $277,000.
Breyer, the 83-year-old pragmatic liberal associate justice nominated by then-President Bill Clinton in 1994, will step down from the nine-member high court at the end of the 2021-22 term this summer. If confirmed by the Senate as expected, Jackson, a former Breyer Supreme Court clerk, will replace her old boss.
Breyer taught law for Harvard Law School and at the Harvard Kennedy School of Government for several years and has written books and articles on administrative law and economic regulations. His most recent book, Making Democracy Work: A Judge’s View, took a deep dive into the inner workings of the U.S. Constitution. Breyer was a judge on the United States Court of Appeals for the 1st Circuit, based in Boston, from 1980-94.
Solomon noted that unlike other retired federal judges, retired Supreme Court justices are not permitted to participate in determining any issues before the highest court. They are also not known or identified as “senior judges.”
“When William O. Douglas attempted to play a more active role following his retirement, claiming that it was his prerogative because of his senior position, he was rebuked by Chief Justice Warren Burger and chastised by the whole court,” Solomon said.
There are three living former associate Supreme Court justices — Sandra Day O’Connor, who retired on Jan. 31, 2006, David Souter, who retired on June 29, 2009, and Anthony Kennedy, who retired on July 31, 2018.
“Souter regularly sits on panels of the 1st Circuit Courts of Appeals, while O’Connor served on panels of several circuit courts for several years after her retirement and before her subsequent retreat from public life,” Solomon said. “Kennedy has not acted on any judicial panels since his retirement.”
Breyer’s post-retirement plans are ultimately speculative at this time, given his silence on the matter, though Wheeler affirmed he is “a broad-range guy with a lot of interests and a lot of abilities,” also referring to the justice’s longtime passion for architecture.
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“For example, he got very interested in architecture when he was chief judge in the 1st Circuit and they were planning the new courthouse in Boston,” Wheeler said. Breyer sits on the Pritzker Architecture Prize committee and was chairman from 2019 to 2020.
“I know him somewhat, and I’ve worked with him, and I don’t think he’s just going to want to hang it up. I think he’s going to want to stay active,” Wheeler said.
