Experts say Justice Breyer will likely withstand pressure to retire

Following the appointment of three justices under the Trump administration, the U.S. Supreme Court has established a clear conservative majority, but Democrats seem committed to fighting back however possible.

As one example, many progressive activists are publicly calling on 82-year-old Justice Stephen Breyer to step down soon, thus allowing President Joe Biden to nominate a replacement likely to be confirmed by a Democratic-controlled Congress — but evidence suggests Breyer is unlikely to give in to the pressure.

“Loyal to the rule of law”

Some proponents of a Breyer retirement cite the late Justice Ruth Bader Ginsburg’s decision not to retire under President Barack Obama, leaving her seat open upon her death to be replaced by President Donald Trump.

A variety of public commentary and columns have been dedicated to the topic with a similar overarching message: It is time for Breyer to step aside and allow Biden to replace him.

Loyola University Chicago School of Law professor Christie Kexel Chabot, however, is among those who believe Breyer will not cave.

“Justices don’t like to be pressured politically, and they generally don’t like law professors telling them what to do,” she explained.

For his part, Breyer recently — and not so subtly — pushed back against such partisan pressure, insisting that politics should play no role in the high court’s decision-making process, including retirements.

“Politicians in robes”

During a lecture at Harvard Law School in April, Breyer said that, in his experience, judges are “loyal to the rule of law, not to the political party that helped to secure their appointment.”

He went on to argue that Americans cannot view judges as “politicians in robes,” adding that if so, “confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

Nevertheless, there is some historical precedence for the pressure currently being directed toward Breyer, who was appointed to the Supreme Court by President Bill Clinton.

According to the results of a study published in March, retirements between 1920 and 2016 among federal judges were more common in the months after an election if the new president was of the same party as the president who first appointed them.

That trend does not always hold true, however, especially among Supreme Court Justices. A 2019 study found several examples of justices who “passed up opportunities to retire to ideologically compatible presidents.”

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