Breyer’s retirement possible as Court session nears its end
Democrats are watching the Supreme Court warily in the last week of its term to see if its oldest member will retire, allowing President Joe Biden to name a replacement while the party still holds a narrow majority in the Senate.
But Justice Stephen Breyer, 82, is giving no indication that he will step down. In a speech in April, he underscored the need to keep the court separate from politics, making arguments that might be hard to square with a retirement decision timed to help Democrats.
“If the public sees judges as politicians in robes, its confidence in the courts and in the rule of law itself can only diminish,” Breyer said in a speech sponsored by Harvard Law School in April.
White House officials and congressional leaders haven’t seen any sign that Breyer might retire. Outside groups have privately mulled over their wish list for a replacement while some progressives have been openly demanding that he quit now so Democrats can use their fragile hold on the Senate to confirm his successor. The 50-50 party split means the illness or death of a single senator could leave Democrats short of the votes needed to muscle through a Biden pick, and Republicans could retake the Senate in the 2022 elections.
If Breyer were to make an announcement, courtwatchers say they expect it would come in the next week. In recent decades, retiring justices have timed their decisions to coincide with the end of the court’s term in late June. When Justice Anthony Kennedy retired in 2018, he did so hours after the last opinion was released.
It’s possible that Breyer will simply stay on the job, angering progressives who say his insistence on remaining is a missed opportunity to keep a liberal justice in his seat, given the likelihood of Republicans regaining control of the Senate in 2022. They’d hoped Biden would have a chance to fulfill a campaign pledge to seat the first Black woman to the Supreme Court and shore up the 6-3 liberal minority with a younger justice.
One of the most talkedabout contenders for the nomination is Ketanji Brown Jackson, a former Breyer clerk who sits on the U.S. Court of Appeals for the D.C. Circuit. Another possibility is California Supreme Court Justice
Leondra Kruger.
Appointed by President Bill Clinton in 1994, Breyer is just one year younger than the average age that a justice now leaves the court either by death or retirement, according to a database maintained by Washington University in St. Louis professor Lee Epstein.
One sign Breyer may stick around: He has hired a full complement of four law clerks for the 2021-22 term, according to the legal writer David Lat, who runs the website Original Jurisdiction.
Nor has Breyer shown signs of slowing down off the court. In the April speech sponsored by Harvard Law School, he voiced concern that proposals to add seats to the court — pressed by liberal groups eager to offset the conservative shift — would erode public trust.
Although Breyer spent much of the pandemic working from his home in Massachusetts — and missed the presidential inauguration in January — he has been at the court at least some of the time in recent months.
McConnell has already indicated that if Republicans retake the majority in 2022, he may enforce another blockade to any 2024 Biden high-court pick like the one he used to keep former President Barack Obama from filling an open seat in 2016.
A confirmation before the 2022 midterm elections holds out at least some prospect of seeing a nominee gain some bipartisan support, while a vacancy after that is risky.