Nothing Justice Stephen Breyer has said publicly suggests he’s ready to quit
Every day another voice adds to the groundswell of pressure on 82-year-old Justice Stephen Breyer to retire when the annual Supreme Court session ends in a few weeks.
But implicit in the comments, such as Sen. Mitch McConnell’s warning this week that he may block a Democratic Supreme Court nominee should Republicans win the Senate in the November 2022 midterm elections, is a premise that Breyer actually still has another full term to make a decision.
And he just might take it.
Nothing Breyer has said publicly suggests the 27-year veteran is ready to leave the work of the court just yet.
He seems in vigorous health, unlike some retirees in recent years or the late Justice Ruth Bader Ginsburg, whose September 2020 death allowed then-President Donald Trump to place a third appointee on the bench. Breyer, who jogs and meditates, has remained visible on the speaking circuit during the Covid pandemic via Zoom.
Breyer also has a special interest in cases the justices are scheduled to hear next session, including on abortion rights and gun control. He has authored crucial, narrowly won abortion rights decisions in recent years.
He has also supported affirmative action programs, and the court may be poised next term to take up a case challenging Harvard admission practices that have traditionally benefited Black and Latino students. When the conservative majority in 2007 struck down integration plans in Seattle and Louisville, Kentucky, public school districts, Breyer wrote, “This is a decision that the Court and the Nation will come to regret.”
Right now, Breyer appears to be tuning out the will-he-or-won’t-he commentary, working to finish his opinions for the 2020-21 term and sending no signals that he is ready to pack up his book-lined chambers. (He declines public questions on the retirement issue and is holding his thoughts, one way or another, close.)
Justices have been known to engage in late-June recalibration, as in 2005, when Sandra Day O’Connor suddenly announced her retirement (on July 1) when she discovered that Chief Justice William Rehnquist, battling thyroid cancer, was not stepping down. (Justices are loath to cause two vacancies at the same time, fearing that could impede the work of the court.)
In 2018, Justice Anthony Kennedy decided to retire but left most of his colleagues in the dark until after they had descended the bench on their last June day. Kennedy, who had confided in Chief Justice John Roberts, told the others during a session in their private conference room.
Breyer served as a counsel to the Senate Judiciary Committee early in his career and has remained attuned to the politics of the chamber. He would know that President Joe Biden’s best shot for confirming a Supreme Court nominee would occur with a Democratic-led Senate.
Yet Breyer would be reluctant to succumb to politically driven pleas. In an expansive speech at Harvard recently, he emphasized the importance of shielding the judiciary from politics to foster confidence in the court’s decisions.
He lamented that people sometimes view the justices as “junior league” politicians and criticized the Senate confirmation process.
“Senators will often describe a nominee they oppose as too ‘liberal’ or too ‘conservative,’ ” Breyer said. “What they say, reported by the press to their constituents, reinforces the view that politics, not legal merits, drives Supreme Court decisions.”
Liberals worry about being able to replace Breyer
Trump’s choice of Brett Kavanaugh to succeed Kennedy, along with Amy Coney Barrett’s succession of Ginsburg, have moved the court significantly to the right and raised the stakes for the law in America.
A Biden-appointed successor for Breyer, either this year or next, would not change the current 6-3 conservative-liberal makeup. But some Democrats fear risking a greater slide to the right if Biden is not able to replace Breyer with a younger liberal soon.
Since January, liberal law professors have been urging Breyer to retire this year. Advocacy groups on the left have been broadcasting similar pleas, and some Democratic members of Congress have joined in as well.
On Sunday, Democratic Rep. Alexandria Ocasio-Cortez of New York told CNN’s Dana Bash that she thought Breyer should retire at the end of this term. Two days later, in an interview with CNN’s Poppy Harlow, Democratic Rep. Ted Lieu of California said he agreed with Ocasio-Cortez but added that he thought Breyer should retire “prior to the midterms.”
McConnell’s warning about possible obstruction of a Biden Supreme Court choice is similarly tied to the midterms. When conservative radio host Hugh Hewitt asked the Senate minority leader whether he would allow confirmation of a Biden justice in the 2024 presidential election year if the GOP wins the Senate next year, McConnell said, “I think it’s highly unlikely.”
The Kentucky Republican would not commit, during the Monday interview, to allowing confirmation in 2023, either. He ducked the 2023 question again when asked by CNN’s Manu Raju on Tuesday.
Liberals worry about what happens before the November 2022 elections. Many have been shaken by the increasing conservatism on the court, including the three Trump appointees, and raise the possibility that the Democrats could lose their fragile one-vote Senate majority, through a death.
The current clash of interests would not be lost on top Biden administration officials, who have unparalleled firsthand experience in nomination battles.
As a senator, Biden oversaw Judiciary Committee hearings for Supreme Court candidates, including the 1987 fight involving Robert Bork (defeated by the Senate 58-42) and the 1991 fight over Clarence Thomas (confirmed 52-48).
At Biden’s side for many contentious hearings was former committee counsel and current White House chief of staff Ron Klain. He later moved into the executive branch and helped guide the Supreme Court choices of Presidents Bill Clinton and Barack Obama.
But Merrick Garland, Biden’s attorney general, experienced the process most personally and painfully, as a high court nominee denied any Senate consideration after Obama put up his name in March 2016 as a successor to the late Justice Antonin Scalia. (Trump filled the vacancy in early 2017 with Neil Gorsuch.)
For Democrats, that ordeal offers a reminder of how, even when a timeline appears safe, no bets are safe.