After the Supreme Court issued its final two opinions of this term on Thursday, all eyes turned to Justice Stephen Breyer, the court’s senior liberal who is facing intense calls to retire so Democrats can install a replacement this summer.
Breyer had been closely watched all term after Democrat Joe Biden won the presidency and Democrats carved out a razor-thin majority in the Senate. But now that the high court has handed out opinions in all of the disputes, observers are keeping a sharp eye on the 82-year-old jurist to see if he announces that this term will be his last.
Nothing Breyer has previously said has indicated that he is ready to make a significant announcement. He has also declined to talk about his retirement prospects, and his vision about keeping judges above politics, expressed in a Harvard lecture in April, will be published in a book this September.
But none of that has kept the pressure off of him to call it quits at the court, with liberals nervous about the prospect of losing another chance to get one of their own on the bench after the late Justice Ruth Bader Ginsburg declined to step down under Barack Obama’s presidency so that he could name a younger justice to sit on the court. With her passing last September, then-President Donald Trump was able to fill the vacancy and name a third justice to America’s highest court, solidifying the court’s 6-3 conservative majority.
Should Breyer retire and Biden successfully appoint a younger member to the court, its ideological tilt won’t change, but Democrats nonetheless fear that should the opportunity pass them by, a future Republican president might be the one replacing Breyer. In addition to that, the party was spooked earlier this month when Senate Minority Leader Mitch McConnell warned that he may block a Democratic Supreme Court nominee should Republicans win the Senate in the November 2022 midterm elections.
White House press secretary Jen Psaki would not weigh in Wednesday on whether the White House is preparing for Breyer’s possible retirement, telling reporters it is up to “any justice to determine the timeline of their retirement.”
Democrats had initially tiptoed around the issue, but its liberal wing recently became more forthright about its worries, with two progressive lawmakers — New York Reps. Mondaire Jones and Alexandria Ocasio-Cortez — publicly signaling in recent weeks that they want Breyer to step down.
The progressive group Demand Justice, meanwhile, has upped outside PR efforts in recent weeks in an effort to get Breyer off the bench, with the group funding an ad in The New York Times earlier this month that featured a group of 18 scholars calling on Breyer to announce plans to step down.
“Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the ad read in part.
The group had also hired a billboard truck to circle the Supreme Court building in April bearing the rhyming slogan: “Breyer, Retire.”
For his part, Breyer, who was appointed to the bench by then-President Bill Clinton in 1994, has been actively participating in court business during the closing days of its term, writing decisions preserving Obamacare and bolstering student free speech and, when conservatives ruled against union organizing on agricultural land, forcefully dissenting for the left wing.