Liberal frustration with Justice Stephen Breyer grew on Thursday, following a CNN report in which the soon-to-be 83-year-old justice said he hasn’t decided yet whether to retire.
“This new report suggests Justice Breyer’s 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,” advocacy group Demand Justice’s executive director Brian Fallon said on Thursday. “In other words, this is about ego.”
Breyer told CNN’s Joan Biskupic that two factors will be overriding in his retirement decision: “Primarily, of course, health. Second, the court.” Biskupic reported that Breyer enjoys being the senior Democratic appointee. That designation previously belonged to Ruth Bader Ginsburg, who died in 2020 after bucking calls to retire during President Barack Obama’s tenure and was replaced by Donald Trump appointee Amy Coney Barrett.
Breyer’s latest public remarks underscore the Bill Clinton appointee’s imperviousness to retirement calls from progressives still reeling from Ginsburg’s death. Barrett’s confirmation widened the 5-4 gap on the high court between Republican- and Democratic-appointed justices to 6-3. The 2020-21 term ended with two 6-3 decisions, including the majority’s latest ruling siding with Republicans on the Voting Rights Act.
Breyer has argued in public speeches that the court is not a political institution, a position dismissed by liberals. They say Republicans are playing a different game than Democrats when it comes to judges, both in terms of strategic retirements and in blocking or threatening to block Democratic appointees.
Want to point out, too, that Breyer’s desire to live out the fantasy that he’s some sort of crusader for the Supreme Court’s reputation may prevent the nomination of the first Black woman to the Court— Maya Sen (@maya_sen) July 15, 2021
Anna O. Law, Herbert Kurz Chair of Constitutional Rights at CUNY Brooklyn College, said “there is an asymmetrical recognition of the political and power dynamics of Court appointments among the GOP and Democrats. The GOP has long recognized that SCOTUS is political, after all, why put so many resources into holding a majority on it?”
The Senate is split 50-50 along partisan lines, with Vice President Kamala Harris available to break ties for Democrats. Multiple Democratic senators are, like Breyer, in their eighties heading into the 2022 midterm elections next year.
“Rather than looking to the future and making way for fresh talent,” Law said, “Justice Breyer refusing to retire while the Democrats control the Presidency and Senate would be politically catastrophic in tipping the balance of the Court decidedly in the conservative direction for generations.”
Video: Associate Justice Stephen Breyer has injected wild, sometimes bizarre scenarios into his questions at oral arguments. In this video, Supreme Court reporter Kimberly Robinson takes a look at some of Justice Breyer’s greatest hits.
Harvard Kennedy School professor Maya Sen tweeted that Breyer was “utterly delusional,” adding, “Want to point out, too, that Breyer’s desire to live out the fantasy that he’s some sort of crusader for the Supreme Court’s reputation may prevent the nomination of the first Black woman to the Court.” Biden pledged during his presidential campaign to nominate the first Black woman to the court.
Cassandra Burke Robertson, director of the center for professional ethics at Case Western Reserve University School of Law, said judicial retirements are “an area where the individual Justices have close to complete discretion by constitutional design.”
She said “there’s nothing wrong with considering the political realities of retirement timing, but Justices considering retirement are more likely to be thinking about other factors—for example, have they already built a judicial legacy to be proud of?”