Obviously, to state it this way is to refute it, but this is the literal logic of claims that Stephen Breyer retiring strategically just like Anthony Kennedy did would make an otherwise apolitical institution political:
The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls for his retirement from fellow progressives. The reason? Breyer apparently worries that retiring in the face of a public pressure campaign from Democrats will increase polarization and a politicized view of the Supreme Court. In reality, a Breyer retirement delay could well have the opposite effect. If Breyer delays too long and Democrats lose control of the Senate before a successor is chosen, then Mitch McConnell could have the opportunity to block a Breyer replacement and supercharge the last five years of intense polarization around the court.
It’s not hard to imagine how a Breyer delay increases the politicization of the court. Breyer waits to retire for a couple of more years, or even a few more months. Democrats lose control of the Senate in the 2022 midterm elections, or because an elderly member of their bare Senate majority passes away and gets replaced with a Republican, restoring Mitch McConnell to his perch as Senate majority leader. Breyer dies or becomes ill soon after Republicans retake the Senate and leaves the court. President Joe Biden, fulfilling his campaign pledge to nominate a Black woman to the Supreme Court, chooses a judicial superstar like California Supreme Court Justice Leondra Kruger or (soon-to-be D.C. Circuit Judge) Ketanji Brown Jackson. McConnell shamelessly announces that Republicans will hold no hearings for a Supreme Court justice until after the 2024 presidential elections, much like he ran out the clock on a hearing for Merrick Garland to fill the late Justice Antonin Scalia’s seat. Democrats stage protests about the blockade of the nominee, and the nominee’s face is featured prominently in advertising about the court. A key debate in the 2024 presidential election is about who is going to take the seat on the Supreme Court, with knowledge that not only Breyer’s spot, but also likely the seats of Justices Clarence Thomas and Samuel Alito (two staunch conservatives) could open up with a Republican presidential win in 2024. The court is once again the political football in our national arena.
The broader problem here is that the idea that the Supreme Court isn’t “political” is obvious bullshit — if it were true Merrick Garland would be an Associate Justice right now — and any argument proceeding from this false premise is going to be bullshit. But the idea that Democratic-nominated justices unilaterally disarming from the general tendency to retire strategically can somehow make the Court less political is particularly damaging bullshit.
If Breyer fails to submit a conditional resignation by the end of this term he will deserve all the criticism he gets and much more. There would be no possible defense for such obscenely self-centered irresponsibility.