Justice Breyer talks retirement, hints that final decision still under consideration

Ever since President Joe Biden was elected, Democratic activists have demanded that 83-year-old Supreme Court Justice Stephen Breyer step aside so he can be replaced with a younger, left-leaning judge appointed by Biden and confirmed by the Democratic-controlled Senate.

Justice Breyer has thus far withstood the pressure to retire but acknowledged in a recent interview that it is under consideration and a final decision will rest, in part, on the assurance that his replacement will not rule counter to his own decisions over the past few decades, Politico reported.

However, Breyer has yet to reach a final determination on when he will retire from the high court, though he did imply that he hoped to exit the job prior to his own death.

Careful consideration

The latest remarks on retirement from Justice Breyer came during a recent interview with The New York Times, during which he said, “There are many things that go into a retirement decision.”

Breyer approvingly quoted in that regard his former colleague, the late Justice Antonin Scalia, and recalled, “He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.'” Breyer went on to acknowledge that “That will inevitably be in the psychology” of his ultimate decision on when to step down.

Recall that Scalia died during former President Barack Obama’s tenure in office and Senate Republicans fought for more than a year to prevent Obama from replacing the late justice with an ideological opposite, the now-Attorney General Merrick Garland, and kept that seat vacant so former President Donald Trump could fill it with Justice Neil Gorsuch, who shares a similar judicial philosophy as Scalia.

Undoubtedly in reference to Scalia, not to mention the late Justice Ruth Bader Ginsburg, who was also replaced by Trump, this time with an ideological opposite in Justice Amy Coney Barrett, Breyer told The Times of his own tenure on the high court, “I don’t think I’m going to stay there till I die — hope not.”

Breyer made it clear, however, that he had not yet determined exactly when he would step down. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

Multiple factors

While Justice Breyer obviously has not yet decided when to retire, his comments do appear to indicate that he is giving the matter some thought, including the political implications of who will be the ones appointing and confirming his eventual successor.

The Washington Examiner reported that all of this comes as Democratic activists, and even some elected Democrats in Congress, have become increasingly strident in demanding that Breyer step aside and be replaced during this potentially brief window of opportunity in which Democrats control both the White House and Senate.

Indeed, should Republicans reclaim control of the Senate following the 2022 midterm elections, that shift in the majority would almost certainly impact whether Biden could appoint a radical progressive judicial activist or a more moderate and centrist traditionalist to replace Biden, given the bitterly partisan nature of the Senate confirmation process.

If those probabilities are part of Breyer’s calculus on when to retire, then nobody should be surprised if the elderly judge announces his decision to step down within the next year, so as to give Biden and the Dem-controlled Senate ample time to appoint and confirm his replacement.

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