Breyer leaves Democrats in suspense on retirement
WASHINGTON – 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.
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, court-watchers say they expect it would come soon. 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.
The White House has resisted putting public pressure on Breyer. Asked Friday if Biden hopes to see a justice retire, press secretary Jen Psaki said: “It’s a decision for them to make as an individual, and he still would support whatever decision they make.”
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.
But he’s also serving at a time when political figures in the U.S. are increasingly staying on the job at advanced ages. Speaker Nancy Pelosi is 81, Senate Minority Leader Mitch McConnell is 79, and Biden is 78. Breyer is still younger than four U.S. senators, including Chuck Grassley, who has filed paperwork to seek another term in 2022, when he will be 89.
Though Breyer is on the short side of the court’s 6-3 conservative-liberal split, he has played a key role this term in stitching together the type of consensus rulings he relishes.
Breyer wrote the court’s 6-2 ruling favoring Google in a multibillion-dollar copyright clash with Oracle Corp., its 7-2 decision rejecting a Republican challenge to the Affordable Care Act and its 8-1 ruling backing a high-school cheerleader punished by her school for a social media post.
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.
The speech is now being converted to a book that its publisher, Harvard University Press, is touting as coming from a “sitting justice.” The book, “The Authority of the Court and the Peril of Politics,” is set to be released Sept. 14.