On January 27, 2022, Justice Stephen Breyer announced his retirement from the Supreme Court, effective at the end of the current term, meaning late June or early July 2022, “assuming that by then my successor has been nominated and confirmed.”

The Constitution says that the President “shall nominate” and with the “Advice and Consent” of the Senate “shall appoint … Judges of the Supreme Court.” President Biden has pledged to announce his nominee by the end of this month, and then the vetting process will begin. The “Justice-in-Waiting” will pay courtesy calls on Senators, the Senate Judiciary Committee will hold hearings, and the nomination will then come to a vote by the full Senate.

Linda Greenhouse, the New York Times’s Supreme Court reporter from 1978 to 2008, believes that Breyer was “the right justice for the wrong age.” (New York Times Jan. 26, 2022). She describes two “misfortunes” that have befallen Breyer—one, that he has spent much of his 26 years on the Court as the “quintessential Enlightenment man” in an unenlightened era; the other, that he has fallen prey to the liberal left’s demand that he step down.

She goes on to cite cases where Breyer has been on the losing side. One is a 2007 decision where the Court receded from its commitment to school integration. Another is the recent ruling that OSHA had no business imposing a workplace vaccinate-or-test requirement on employers, since Covid-19 is not limited to where people work.

I agree with Ms. Greenhouse that these cases were wrongly decided, but I disagree that this was the wrong age for Breyer to be on the Court. I also disagree that the outcry for him to step down was unfair or ill-considered.

There is nothing new about a Supreme Court out of touch with the needs of society and the interests of justice. In 1857, seven justices said that Dred Scott could not exercise the rights of a citizen because he was Black. In 1944, the Court allowed the government to intern Japanese-Americans. In 1988, the Court had no problem with a state law making adult same-sex conduct a crime. Each of these rulings was accompanied by stinging dissents.

These decisions were wrong when they were made and have been consigned to history’s dustbin. They and many other cases demonstrate that the Supreme Court has often failed to live up to the words “equal justice under law,” which appear above the entrance to the Supreme Court Building.

We know that yesterday’s dissents can become tomorrow’s law, and Justice Breyer’s dissents in many of this Court’s decisions may yet serve as prophesy. In that sense, he was not the wrong justice for our age. He sounded alarms when he thought they were needed, as Holmes, Brandeis, and other great justices have done in the past.

Calls for Breyer to resign were the inevitable result of Justice Ruth Bader Ginsburg’s decision not to do so. Her choice led to Donald Trump’s appointment of Amy Coney Barrett, who can fairly be described as the “anti-Ginsburg.”

So, in terms of our current political climate and demands for Breyer’s resignation, as the saying goes, “Once burned twice shy.”

The lesson is not that Breyer was victimized but rather that a long-serving judge in his 80s should give serious thought to yielding to someone younger, especially if he believes the new appointee will reflect the values for which he has fought over a lengthy career on the Supreme Court. That is a worthwhile legacy.

Justice Breyer’s many opinions and dissents reveal not just an extraordinary intellectual, but also a down-to-earth pragmatist. In Mahanoy Area School District v. B.L. the question was whether a school had the right to discipline a student who had a profane online meltdown when she didn’t make the varsity cheerleading team. Breyer’s opinion last year says that schools are not powerless when it comes to off-premises student conduct, but in these circumstances the school went too far. Notably, most of the Court’s conservative members joined in the opinion, which speaks to Breyer’s ability to reconcile opposing views, find middle ground, and bring people together. Besides, the opinion reminds us, teaching good manners begins at home.

A few weeks ago, the Court heard a case called Shurtleff v. City of Boston, where the issue is whether the City had the right to refuse Shurtleff’s request to raise a Christian Flag on a City Hall flagpole that is made available to the public. The case poses a constitutional dilemma between separation of church and state; on the one hand, and freedom of speech, on the other.

At the hearing, the erudite, intellectual Justice Breyer asked a pragmatic question about getting the case resolved: “Can’t it be settled?”

Justice Breyer was not the wrong justice for our times. He, unlike some of his colleagues, understands that promoting an ideology and being a good judge are incompatible. And his judicial career demonstrates that pragmatism befits judges at all levels of the judicial system.

New Hampshire’s David Souter, who served on the Court for 19 years—15 alongside Breyer—also possessed the quality of pragmatism, and another shared trait — humility. We will be well served if President Biden  appoints someone cut from the same cloth.