Supreme Court

"Nothing Justice Stephen Breyer Has Said Publicly Suggests He's Ready to Quit"

Progressives are increasingly worried that Justice Breyer will overstay his time on the Court.

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Progressive groups are becoming increasingly strident in their calls for Justice Stephen Breyer to retire, so as to ensure that President Biden may replace him with a young progressive justice. In April, the progressive dark money group Demand Justice launched a "Breyer Retire" campaign, and now they are trying to turn up the heat.

According to new reports, thirteen progressive groups, including Black Lives Matter and the Sunrise Foundation, will endorse a full-page ad in Politico calling upon Breyer to take leave from the bench. Another report indicates Demand Justice will sponsor an ad in The New York Times signed by a list of progressive legal scholars with the same message. The urgency of this campaign was no doubt heightened by Senator McConnell's recent remarks confirming that a Republican majority Senate would again refuse to confirm a Democratic nominee to the High Court in an election year.

Justice Breyer, for his part, has given no indication he has plans any plans to step down from the Court. Earlier today, Supreme Court reporter Joan Biskupic, who has been known to get inside-the-Court scoops, reported that Justice Stephen Breyer is not acting like a justice who is getting ready to retire.

From Biskupic's CNN report:

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.

As Biskupic also notes, "Breyer also has a special interest in cases the justices are scheduled to hear next session, including on abortion rights and gun control." And the Court may be taking a major affirmative action case next term too. If Justice Breyer wants a greater turn as the senior liberal voice on the Court, he may want to stick around for another year (if not longer).

Biskupic's report also suggests that some of the more political appeals to Breyer might actually backfire, as Justice Breyer may see such appeals as further politicizing the Court. From her story:

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."

I have no special insight into Justice Breyer's thinking, but it would not surprise me at all if he decides to stay on the Court for one more year. The Senate was able to confirm Justice Amy Coney Barrett in the fall of an election year, so he may conclude that a Summer 2024 confirmation would be no heavy lift. On the other hand, maybe the die is already case, and perhaps (as occurred with Justice Kennedy) he will announce his retirement within days of the SCOTUS term's end.

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  1. To get ahead of the flood, Justice Breyer did not kill himself.

    1. Should not quit. If he does, seat remains empty for a long time. I support an even number of Justices to avoid those devastating 5-4 decisions that bring opprobrium on the Court. Good for the nation, bad for the Democrats if Bryer quits.

      1. Being a liberal justice is the second easiest job in the country after being president…literally anyone in America with over a 90 IQ could be a liberal Supreme Court justice.

        1. I agree. Just vote for big government, rent seeking, tyranny. Everyone else in DC does the same. It is easy to just imitate.

  2. “He seems in vigorous health, unlike some retirees in recent years or the late Justice Ruth Bader Ginsburg”

    Well speaking as someone who retired at 63 in excellent health, retiring when you can still enjoy it isn’t the worst thing in the world. I’d love to see Breyer hang on another 2-10 years though just to spite the people who think the Supreme Court is just a super-legislature. But I wouldn’t begrudge Breyer a leisurely retirement.

  3. Has it occurred to these Progressive groups that this effort may well backfire and cause Breyer to dig in his heels?

  4. It’s possible that similar calls for RBG to retire helped her decide to stay on.

    1. The rules of engagement shifted under RGB’s feet incredibly fast. Sotomayor and Kagan were confirmed with comfortable margins after a weak attempt to filibuster Alito. But she couldn’t have known that that the 2013 nuking of the filibuster was going to happen and turn everything on its head vis a vis judicial nominations.

      1. If you look back at the trendlines, Sotomayor and Kagan were canaries in the coal mine.

        Ginsberg and Breyer got comfortable margins 96-3 and 87-9.

        But those margins dropped substantially for Sotomayor and Kagan 68-31 and 63-37. And remember, Democrats had 60 senators at the time.

        The GOP got tired of the game where they would pass liberal judges easily, while the Democrats would attempt to sabotage or vote down conservative judges like Alito (a 58-42 vote).

        1. Dear Mr. Armchair Lawyer Who Does Not Know History:

          The reason Ginsburg and Breyer got confirmed to SCOTUS by such high margins is that before appointing them, President Clinton called on Republican Senate Minority Leader Orrin Hatch, and the two of them worked out a list of potential nominees who were moderates and would be acceptable to both sides.

          1. Ginsberg the “moderate”… Uh huh….

            1. She was certainly moderate when Bill Clinton nominated her. By most sensible definitions of “moderate” she stayed moderate until her death.

              The last real non-moderate lefty on SCOTUS was Thurgood Marshall.

            2. Orrin Hatch thought so.

      2. But [RBG] couldn’t have known that that the 2013 nuking of the filibuster was going to happen

        After Harry nuked the filibuster, she still had more than a year during which she could have resigned, when Obama was President, and there was still a good solid Democrat majority in the Senate.

        She didn’t resign in 2014, because she didn’t feel like resigning in 2014.

        1. I think that’s the benefit of hindsight though. The 2013 filibuster nuke was for circuit courts and executive branch confirmations only (even if it was a paper line). That would have required Reid to change the rules twice in a year going into an election where Republicans had a good chance of taking the senate. It also would have been without the knowledge that Republicans would fail to move on almost all confirmations after retaking the senate (holding open a good chunk of seats was common, but 2015-2016 was the extreme). She also wouldn’t have known Scalia was going to die and McConnell was going to hold the seat open, or that a Republican was going to win in 2016.

          The safe time to retire would have been in 2009-2010. but I don’t blame her for not realizing how bad it would later at the times she was being urged to retire.

          1. And to be clear, there were people calling for her to retire at several points under Obama and they were obviously correct in hindsight. But I think the benefit of hindsight makes to look more correct than they were at the time.

            1. I find it surprising that you find it surprising that the Republicans became more reluctant to move on Obama judicial nominations, after they’d just been nuked by Harry.

              But RBG herself was not surprised. She’s on record as stating that she didn’t resign in 2015 or 2016 because she did not expect the Republicans to confirm a like minded successor.

          2. “The 2013 filibuster nuke was for circuit courts and executive branch confirmations only”

            Or in other words, the 2013 filibuster nuke was only for all confirmations except SCOTUS nominations…. Why not SCOTUS nominations? Well, there was no SCOTUS opening then….If there was, it would’ve been included.

          3. That would have required Reid to change the rules twice in a year going into an election where Republicans had a good chance of taking the senate.

            The fancy that Harry Reid is easily embarrassed is delightful.

    2. I have heard some scuttlebutt supporting exactly that, that Ginsburg was highly offended by all the machinations to try to get her to retire.

      Obviously, there’s a political aspect to the Court, and some justices are more attuned to it than others, but the justices have a lot more holistic view of what they do. For instance, Ginsburg was aware of what she brought to the conference on all of the different cases that the Court heard.

      If a judge does not view the Court as an essentially political institution to begin with, they are unlikely to be convinced by political appeals to step down and may very well see them as quite improper.

  5. 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.

    Maybe he could have a talk with McConnell. Breyer is simply being naive.

    1. Breyer is being real.

      If you consider the judicial branch just another way to politically exert your will, then it loses much of its power and legitimacy.

      1. That ship has sailed, A.L.

        1. Not necessarily. Many people still have confidence in the impartiality and independence of the judicial branch. Breyer is trying to preserve that. For which I commend him. That trust can be lost though. And it can have truly tragic outcomes.

          One major question, for example, is why Latin America isn’t richer. It has many of the same benefits the US and Canada have. Especially places like Argentina, Chile, and Uruguay. But why is the standard of living not the same?

          One major reason proposed is the lack of trust. The people just don’t trust the government. Because of that, a system of fair rules don’t exist, and people can’t take relative risks in investment, work, and so on. They fear the results of their work or investment will be taken away…so the investment doesn’t occur.

          1. Chile, Argentina, and Uruguay had capitalist systems but they threw them away. It’s hard to understand the appeal of socialism given that it fails every time. We’ll be as poor as Argentina in 30 years.

  6. I concede that Brian Fallon probably isn’t a Republican false flag, but he and Demand Justice are indistinguishable from what a Republican false flag would look like.

  7. It is his time, his career is his to do as he pleases. Considering how much these others are carrying on he may be worried exactly what they will do to the court if they get their way

  8. I really don’t think this is going to have the result they want. Nothing is likely to make you dig in your heels more than everyone shouting at you.

  9. If Justice Breyer had been thinking about retiring, these folks may end up pressuring him into postponing just to avoid the appearance of caving to politicians.

  10. I see no reason to go aflutter in any direction here.

    No one is likely to bring anything new to Justice Breyer’s attention, nor to sway him much. Pushing could be counterproductive.

    If he stays for a while and the timing of his departure is unfortunate for the liberal-libertarian mainstream, that’s just a matter of mathematics . . . another robe or two needed in the context of Court enlargement that seems increasingly inevitable.

    Relax, everyone. From a practical perspective, Justice Breyer’s decision is unlikely to have much practical consequence, even if he is dopey enough to try to stay for a few more years.

    1. I don’t think anyone was worried there, Artie. Although given that Congress and the White House will be in GOP hands by January 2025 he’s got some time to decide and the GOP will be better at picking a good justice anyway. 7-2

      1. Will Trump return to the White House in 2025, in your judgment, or instead will his prediction that will he be reinstated In a couple of months be vindicated, in your judgment?

      2. ” Although given that Congress and the White House will be in GOP hands by January 2025 he’s got some time to decide and the GOP will be better at picking a good justice anyway. ”

        ASSUMING THERE EVEN *IS* A GOP in 2025. Will it be a party led by Trump? The remains of a party after Trump and his fans split off to make his own party? Or will it become moot after Trump’s massive coronary in the drive-thru lane?

  11. Let’s reduce the adler guy’s piece down to a single declarative proposition:

    Breyer will retire sooner or later.

    Yup, the logic checks out. Q.E.D.

    All of the adler guy’s extra words can be used for entertainment purposes.

  12. Were I Breyer, I would finding it both insulting and offensive for advocacy groups to urge me to step down so that a political hack could be inserted in my place.

    1. My thought exactly, Don Nico.

  13. “The replacement for Justice Breyer, a 20-year-old law clerk who exercises regularly, has a healthy diet, never drinks or smokes, and looked forward to ‘a productive 70 years of service,’ issued her first opinion today when she said that abortion is unconstitutional.”

    “‘She must have evolved,’ baffled friends said.”

  14. If a bunch of progressive groups want to waste money on something that’s never gonna happen they are free to go for it.

    Wonder how many people who donated thought they were gonna support criminal justice reform and now end up just supporting a general progressive, which may or may not be in line with their values. Breyer is actually pretty pro-prosecutor, and so are a lot of Biden potential picks (who disguise that by bring black, a dynamic I think is pretty racist but that debate is dominated by idiots so I won’t wade in)

    And expecially a lot of companies who went all in on this only to get an anti-business judge. Companies are generally good about playing this game … for all of Facebook’s progressivism, they hired Paul Clement! Brilliant hire. Also proving that most of this is a smokescreen.

    1. ” Breyer is actually pretty pro-prosecutor, and so are a lot of Biden potential picks (who disguise that by bring black”

      Wait… being black is racist now?

      1. Getting around the fact that your justices do not actually advance criminal justice reform, as advocates claim they want, by picking black prosecutors, and that somehow successfully deflecting criticism, yes, is pretty racist.

        1. “your justices”

          I hate to tell you this, but I don’t have any justices. They won’t let me pick any on the technicality that I’m not and never have been President.

  15. Can anyone think of why a justice with a lifetime appointment should care what some politicians want him to do? Why would he respond at all to a newspaper ad asking him to retire?
    Given no rational reason to expect these calls for him to quit would affect his decision, I conclude that this is a fund raising scheme for leftist politicians. It is possible that one could get campaign contributions by putting their name on such an ad.
    At least that makes sense. Thinking that calling for his resignation would elicit a reaction at all is nonsensical.

    1. I’m not convinced that such ads and movements necessarily won’t elicit a reaction from Breyer — it just may not be the intended reaction.

      If there were no such ads or movement, he could retire now and there would be some claims that he did so for political reasons (even if that wasn’t why he did it), but there wouldn’t be a lot of evidence of that.

      However if he were to retire now many would claim, and those claiming it would pull up the ads and statements from the movement to support the claim, that he did so for political reasons.

      I assume he is sincere in his belief that the courts should be apolitical. However for his legacy as recalled by those that he respects, he’s now been put into a box and might decide to wait until at least after midterms to retire even if he would otherwise have done so now. By delaying he demonstrates that he didn’t take the opportunity to make sure he was replaced by a “very liberal” Justice by retiring when that was a sure bet.

      If, after midterms, the Democrats still control the Senate, he can retire and be replaced by a liberal Justice but it wouldn’t be as likely to be viewed as a political decision since he had passed up the “sure bet”. If, after midterms, the Republicans control the Senate, he can retire and either not be replaced for a couple of years (unlikely) or he would be replaced by a liberal Justice (albeit, a more moderate one than likely if the Democrats controlled the Senate).

      Or he can just ignore all calls for him to retire because he doesn’t want to retire. Maybe in 2025 he will retire in good health because he wants to and the Republican president and Republican controlled Senate will replace him. That would remove all question as to if his retirement was politically based and he can enjoy a decade of healthy retirement.

  16. I’d love to see Mike Lee on the SC or hell Judge Napolitano…Ron Paul would make a great judge even at 85! Dave Smith? Tom Woods? All outstanding choices..wait I’d put Ron in charge of the Fed and Treasury together..

    1. This blog is rooting for Ted Cruz, naturally . . . For libertarian reasons.

      Heidi Cruz has no preference.

      1. She’s shown a capability to flee the country when the going gets cold, er, rough.

  17. Imagine that he steps down tomorrow. Biden then gets to nominate his replacement. So what? Mitch won’t let the confirmation go through, and the Court gets to muddle through the rest of Biden’s term with 8 justices on it. That could potentially be 7 more years.

    1. Just how would Mitch stop it?

      1. Flip Manchin. The Senate is one vacancy or party change away from having McConnell controlling the agenda again.

        For now, if Biden nominates somebody who appears mainstream, then he gets his way.

      2. “Just how would Mitch stop it?”

        Don’t underestimate the power of the dark side of the Force.

  18. I am not a fan of all of the legal analysis nor the legal conclusions expressed by Justice Breyer. The inclination to put political bias and motivation behind every SCOTUS opinion has brought a disservice to the societal cultural understanding of the function and practices of the legal system and SCOTUS in particular. The reality is that on average, 40% of the opinions of the Court are unanimous. Court prognosticators are usually wrong. It is decidedly unseemly for progressives and the chattering class to be watching over a Justice like vultures. The judicial confirmation process has become a spectacle. The organizers of the opposition research and smear merchants that created ” Borking ” a judicial nominee a sport are, in my opinion, root cause of the misguided understanding of SCOTUS and the primary reason SCOTUS and jurisprudence into good v. evil/winners and losers. The justices on SCOTUS are not on the bench to make Solomon like judgements of what is “fair “. The role of a Justice is to set out the legal issues, legal analysis, and legal/ statutory interpretation for the instant cause of action and for the lower courts to apply going forward.

    I find it interesting that there are more headlines about ” unusual alignment of justices ” as opposed to the unanimity of the Court. An R or a D nominee isn’t a guarantee of outcomes on political/societal issues. How predictable were Warren, Brennan, Stevens, and Souter for Republicans? It is shortsighted and intellectually dishonest to view SCOTUS as lockstep 6/3. I personally see a grouping of 3/3/3 on the Court but I can also see variations among the Justices that would further divide the Court. The sideshow around the judicial nomination process and media punditry is a disservice to the populus. The Progressives that are social media darlings are oblivious to their lack of understanding of basic civics, legal analysis, jurisprudence and the Constitution.

    1. Very few actual rational people share 100% of their philosophy with an American political party, so expecting some people to diverge from party orthodoxy from time to time should be a thing normal people do, especially on those occasions where actual reality doesn’t comport with the party ideology. No, cutting taxes won’t increase federal revenue, no matter what Mr. Laffer drew on a cocktail napkin.

      FAR too many people are partisans first, and Americans second.

  19. Everyone is shouting about Stephen Breyer. But Sonia Sotomayor may well die, or be forced by ill health to retire, before he does. The average life-span for a female pre-puberty-onset type-one diabetic born in 1954 (before we had these rapid, reliable electronic glucose-monitors) is 68-71 years. Do the arithmetic. They should both retire while they can still be replaced by sensible jurists.

  20. The urgency of this campaign was no doubt heightened by Senator McConnell’s recent remarks confirming that a Republican majority Senate would again refuse to confirm a Democratic nominee to the High Court in an election year.

    McConnell even suggested they might not confirm anyone in 2023 if they have the majority. He’s saying straight out that denying a Democratic president any appointment is the plan. He can use his BS arguments about how long its been since a left-handed relief pitcher faced a switch-hitting pinch hitter in the bottom of the 8th inning on a Tuesday day game with 1 out and runners on 1st and 3rd base all he wants. It is clear that there is no principle at work in his mind other than power. If he can block a nominee and keep a seat open until a Republican is president, so that they can push through someone that is going to vote the way that Republicans want on hot-button issues 95+% of the time, then he will.

  21. “the die is already case”

    Or controversy? Can Justice Breyer’s retirement be litigated in an Article III court?

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