There have been numerous media reports describing how certain advocacy groups have been trying to pressure Supreme Court Justice Stephen Breyer to retire now, while the Democratic Party has nominal control of the Senate. The groups trying to convince Breyer to step aside have used a variety of strategies, all of which have proved futile. As consultants who have worked with law firms in connection with succession planning issues, this result is unsurprising.
Whether you’re negotiating with a business owner who has claim to a controlling share or attempting to persuade a law firm partner to call it quits, pressuring that person to leave is often counterproductive. This is particularly true when the decision to step down is entirely out of your control. Law firm partners do have the power to force someone out, but that often requires a majority or even two-thirds vote from equity partners. And unless a long-standing partner has demonstrated lack of capacity or some other major deficiency, brute force is rarely the best option.
Shaming someone or failing to listen to them carefully is not likely to help either. Following the death of Justice Ruth Bader Ginsburg last year, Breyer became the senior liberal on the Court. He will turn 83 next week and just received an unofficial promotion. He now assumes the power to decide who writes opinions when the Chief Justice isn’t in the majority. Justice Breyer, like many accomplished professionals, is enjoying the new dimensions of his job.
Describing Justice Breyer’s choice to stay as “about ego,” Brian Fallon of progressive advocacy group Demand Justice has been critical, saying in response to recent comments by Breyer, “This new report suggests [his] desire to stay is based less on a high-minded notion that he might somehow preserve the Court’s reputation for independence, and more on the fact that he finds it personally fulfilling to get the chance to serve in the role of the Court’s senior liberal.”
Dismissing the value that a Supreme Court Justice or law firm partner might find in their job is a sure way to increase resistance. And law firms have an option that our constitutional system doesn’t offer for Supreme Court Justices. Law firms can provide the equivalent of “senior status.” Reducing a person’s role at a law firm doesn’t necessarily mean that they’ll have to turn the dial down to zero. But even if the firm’s managing partner and executive committee do want to sever ties completely with a law firm partner, they shouldn’t do what some advocacy groups have tried with Justice Breyer.