The Volokh Conspiracy

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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.


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.