Former Supreme Court Justices: Kennedy, Breyer, and Senior Status

Two former Supreme Court justices are living and hold retired status in the federal judiciary: Anthony Kennedy and Stephen Breyer. A third recent retiree, David Souter, died at his home in New Hampshire on May 8, 2025, at age 85.¹ All three left the bench through voluntary retirement, not resignation, which means they kept their judicial commissions, kept their titles, and remained eligible to sit on lower federal courts.

The Living Former Justices

Anthony Kennedy

President Ronald Reagan nominated Kennedy, who took his seat on the Court in February 1988. He announced his retirement in the summer of 2018 after more than 30 years of service and assumed senior status rather than resigning.² During his active tenure, Kennedy held the ideological center of the Court on many closely divided cases and cast the decisive vote in a long run of landmark decisions. His seat was filled by Justice Brett Kavanaugh.

Stephen Breyer

President Bill Clinton nominated Breyer in 1994, and the Senate confirmed him 87–9. Breyer served 28 years before announcing his retirement in January 2022, effective at the close of that term on June 30, 2022.³ His seat was filled by Justice Ketanji Brown Jackson, who had previously clerked for him. Since leaving the bench, Breyer has published a book on constitutional interpretation and stayed active in legal and public commentary.

David Souter (1939–2025)

President George H.W. Bush appointed Souter, who served from October 1990 until his retirement on June 29, 2009.⁴ He returned to New Hampshire and continued sitting regularly on the U.S. Court of Appeals for the First Circuit for more than a decade, making him one of the most active retired justices in terms of lower-court service.¹ His seat was filled by Justice Sonia Sotomayor. Souter died on May 8, 2025.

Why They Are Called Retired, Not Former

The difference between retiring and resigning matters more than the words suggest. A justice who resigns gives up the office entirely and severs their connection to the federal judiciary. A justice who retires keeps the office, keeps the title, and keeps drawing the salary of the position for life, provided certain workload requirements are met.⁵ Every modern departure from the Supreme Court has been a retirement, because the financial and professional advantages are considerable. Once a justice retires, the President is directed to appoint a successor with Senate confirmation, which is how the seat opens while the departing justice remains part of the judicial branch.

Senior Status and the Rule of Eighty

Federal law sets a sliding scale of age and service that a justice must meet before stepping back from active duty. The informal name is the Rule of Eighty, because the justice’s age and years of federal judicial service must add up to at least 80. At the youngest eligible age of 65, a justice needs 15 years of service. At 66, the requirement drops to 14. The scale continues down to age 70, where only 10 years of service are needed.⁵

A justice who meets that threshold can take senior status, leaving the regular active roster while remaining available for judicial work. The salary continues for life, but with a condition. To keep drawing full pay, the retired justice must be certified each year as having performed the equivalent of at least three months of judicial work, which can include hearing cases, deciding motions, writing opinions, or performing substantial administrative duties for the courts.⁵ A justice who does not meet that bar still gets paid, but the salary freezes at the level in effect the last time they qualified and only tracks general statutory increases after that, rather than the current officeholder’s pay. For 2025, the annual salary for an associate justice was $303,600.⁶

What Retired Justices Actually Do

Leaving the Supreme Court does not mean leaving the federal courts. Under federal law, the Chief Justice can designate and assign any retired justice to perform judicial duties in any circuit, including the duties of a circuit justice, so long as the retired justice is willing to take on the work.⁷ In practice, that means sitting on panels of the U.S. Courts of Appeals, hearing oral arguments, and writing published opinions that carry the same legal weight as those written by active judges. The statute bars one assignment: no retired justice can be designated to sit on the Supreme Court itself.

Souter’s post-retirement career shows what this looks like. He heard cases on the First Circuit for years after leaving Washington and contributed regularly to that court’s workload. This kind of service also satisfies the annual certification requirement for full salary.

Outside the courtroom, retired justices commonly teach at law schools, deliver lectures, and write books about the law and the Court. These activities are subject to ethical guidelines governing post-judicial conduct, but the restrictions are lighter than what active justices face. Retired justices also frequently take part in civic education programs about the federal courts.

Other Ways a Justice Can Leave the Bench

Retirement is not the only exit, but it is the only one most justices choose. Article III, Section 1 of the Constitution says federal judges “shall hold their offices during good behaviour,” which has been read since the founding as granting life tenure.⁸ There is no mandatory retirement age, no term limit, and no performance review. Many justices throughout history served until death, creating unplanned vacancies. The modern pattern has shifted toward planned retirements timed for an orderly transition, but nothing in the law requires it.

A justice who develops a permanent physical or mental disability can retire from active service at any point, regardless of age or years served. The process requires the justice to certify the disability in writing to the President, and for an associate justice, the certification must also be signed by the Chief Justice.⁹ Ten or more years of total service earns the full salary of the office for life; less than ten years results in half salary for life.

The Constitution provides one involuntary path off the bench. Article II, Section 4 states that all civil officers of the United States, including federal judges, can be removed through impeachment for treason, bribery, or other high crimes and misdemeanors.¹⁰ The House brings the charges, and the Senate conducts the trial, with conviction requiring a two-thirds vote. Only one Supreme Court justice has ever been impeached: Samuel Chase, in 1804. The Senate acquitted him on all eight articles in 1805, and no justice has been impeached since.¹¹

1
Supreme Court of the United States. Press Release – May 9, 2025
2
Supreme Court of the United States. Press Release – June 27, 2018
3
Justia. Justice Stephen Breyer
4
Supreme Court of the United States. Biography of Associate Justice David H. Souter
5
Office of the Law Revision Counsel. 28 USC 371 – Retirement on Salary; Retirement in Senior Status
6
United States Courts. Judicial Compensation
7
Office of the Law Revision Counsel. 28 USC 294 – Assignment of Retired Justices or Judges to Active Duty
8
Constitution Annotated. ArtIII.S1.10.2.1 Overview of Good Behavior Clause
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Office of the Law Revision Counsel. a href=”https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title28-section372&num=0&edition=prelim” target=”_blank” rel=”noopener”>28 USC 372 – Retirement for Disability; Substitute Judge on Failure to Retire
10
Constitution Annotated. Article II Section 4
11
U.S. Senate. Impeachment Trial of Justice Samuel Chase