For Justice Breyer, jury still out on when he will retire
WASHINGTON — Justice Stephen Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor.
He recalled approvingly something that Justice Antonin Scalia had told him.
“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’ ” Breyer said during a wide-ranging interview recently. “That will inevitably be in the psychology” of his decision, he said.
“I don’t think I’m going to stay there till I die — hope not,” he said.
Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Joe Biden can name his successor.
The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.
The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.
He acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public.
“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked, referring to Justice Neil Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.
Expanding on this point in his new book, Breyer wrote, “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
Breyer said he was wary of efforts to increase the size of the court, saying it could send the message that the court is a political institution and result in a tit-fortat race to the bottom.
Such a judicial arms race, he warned, could undercut public faith in the court and imperil the rule of law.
Term limits were another matter, he said.
“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.
But term limits would also have a silver lining for long-serving justices, he mused.
“It would make my life easier,” he said.