The 83-year-old is the court’s oldest member, and for months the expectation has been that the left-leaning judge would soon retire from the court so President Joe Biden could nominate a younger replacement. Doing so would ensure that his successor is selected by a Democratic president, avoiding a repeat of what happened when the liberal Justice Ruth Bader Ginsburg died during Donald Trump’s final months in office.
But this week came and went with nary a peep from Breyer on his retirement plans. Justices typically announce their plans to step down at end of the nine-month term, or shortly beforehand. Sandra Day O’Connor did so in 2005, David Souter in 2009, John Paul Stevens in 2010 and Anthony Kennedy in 2018.
Breyer is allowed to announce a retirement at any time, but some clues he offered Friday indicate he’s planning to stick around for a while. The court confirmed that Breyer has hired four law clerks for the next term ― the most he’s allowed to have while serving on the country’s highest court. That’s a pretty sure sign he is not retiring, attorney David Lat reported in Above The Law, noting that O’Connor had only hired three clerks in the lead-up to her retirement, that Souter had none and that Stevens brought on one.
Kennedy is an outlier, as he had hired four law clerks for the upcoming term when he announced his retirement. The swing voter was reportedly on the fence about retiring up until the final months of the term, and some reports suggest he only agreed to step down after Trump promised he would nominate Brett Kavanaugh to replace him.
Breyer, who has been on the court since 1994, hasn’t offered much when asked about when he might step down. He told Slate in December that he “can’t answer this question because it is too close to something that is politically controversial.”
“I mean, eventually I’ll retire, sure I will,” he said. “And it’s hard to know exactly when.”
Breyer has also suggested that deciding to retire is very difficult, and that term limits would make it much easier.
“I do think that if there were a long term — I don’t know, 18, 20 years, something like that, and it was fixed — I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth,” he said at an event in 2019.
Biden, meanwhile, has made it clear that he’s ready to nominate a justice when the time comes, and has repeatedly promised to make history by nominating a Black woman to the court. Judge Ketanji Brown Jackson, whom Biden nominated to serve on the D.C. Circuit federal court of appeals, has emerged as a potential front-runner for the role. That appeals court has been a launching pad for many other Supreme Court justices, including Kavanaugh and Clarence Thomas.
I do think that if there were a long term — I don’t know, 18, 20 years, something like that, and it was fixed — I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth. Justice Stephen Breyer, 2019
Breyer ostensibly still has plenty of time to retire while Biden is in office, but that’s not the only factor at play. Midterm elections next year could shake up the U.S. Senate, which votes to confirm the president’s nominee, and potentially strip Democrats of their razor-thin majority in the chamber.
That could create some serious roadblocks for a new Biden nominee. When Barack Obama nominated Merrick Garland to replace the conservative Justice Antonin Scalia in March 2016 ― nearly a year before his presidential term was up ― the Republican-controlled Senate refused to conduct nomination hearings on the grounds that it was too close to the next presidential election.
The strategy worked out for Republicans when Trump won and nominated conservative Justice Neil Gorsuch to replace Scalia just days after taking office. He went on to replace Kennedy with Kavanaugh and the late Ginsburg with Justice Amy Coney Barrett ― a nomination the Republican-controlled Senate eagerly acted on, despite the presidential election being just weeks away.
Democrats are highly motivated to keep the seats they have. Aggressive attacks on abortion, transgender rights and voting access are all bubbling up in state legislatures, and many seem prime for a Supreme Court showdown.
Replacing Breyer likely wouldn’t change the court’s idealogical balance, which is 6-3 in favor of conservatives right now, but it would offer Democrats some protection if Biden could name a successor with a long career ahead of her. The court’s two other reliably liberal voters, Sonia Sotomayor and Kagan, are both in their 60s and are anticipated to stay on the court for at least another decade. If Breyer steps down, the firmly conservative Thomas, 73, will take his place as the court’s eldest member, with 71-year-old conservative Justice Samuel Alito not far behind.
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