What we all know (and do not know) about Justice Breyer’s retirement plans

All eyes were on Judge Stephen Breyer when the Supreme Court delivered its final rulings for that term on Thursday.

The 83-year-old is the oldest member of the court, and it has been expected for months that the left-wing judge would soon step down from the court so that President Joe Biden could appoint a younger successor. This would ensure that his successor is chosen by a Democratic President and avoid repeating what happened when Liberal Judge Ruth Bader Ginsburg died in the office of Donald Trump during the past few months.

But this week came and went without Breyer announcing his retirement plans. Judges usually announce their resignation plans at the 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 his resignation at any time, but some clues he offered on Friday suggest he plans to stay a while longer. The court confirmed that Breyer has hired four lawyers for the next term – the maximum number he can have during his tenure in the country’s highest court. That’s a pretty sure sign he’s not going to retire, attorney David Lat reported on Above The Law, noting that O’Connor had only hired three employees prior to her retirement, Souter had none and Stevens had brought one.

Kennedy is an outlier, having hired four lawyers for the upcoming term when he announced his retirement. The swing voter had reportedly retired by the last few months in office, and some reports suggest it only agreed to step down after Trump promised to nominate Brett Kavanaugh to replace him.


Pool via Getty Images

Stephen Breyer is the oldest Supreme Court judge at 83.

Having been on the pitch since 1994, Breyer hasn’t offered much when asked when he could step down. He told Slate in December that he “cannot answer this question because it is too close to something that is politically controversial”.

“I mean, someday I’ll retire, of course I will,” he said. “And it’s hard to know when exactly.”

Breyer has also pointed out that the decision to retire is very difficult and that a term limit would make it a lot easier.

“I think if there was a long term – I don’t know, 18, 20 years, something like that, and it got fixed – I’d say that was fine. In fact, it would make my life a lot easier to tell the truth, ”he said at an event in 2019.

Biden, meanwhile, has made it clear that he is ready to appoint a judge in due course and has repeatedly promised to make history by nominating a Black woman to court. Judge Ketanji Brown Jackson, whom Biden nominated to the DC Circuit Court of Appeals, has emerged as a potential frontrunner for the role. This appeals court was a launching pad for many other Supreme Court justices, including Kavanaugh and Clarence Thomas.

I think if there was going to be a long term – I don’t know, 18, 20 years, something like that, and it was fixed – I’d say that was fine. In fact, it would make my life a lot easier to tell the truth.
Judge Stephen Breyer, 2019

Breyer reportedly has plenty of time to retire while Biden is in office, but that’s not the only factor that matters. Next year’s midterm elections could shake up the US Senate, which is voting to ratify the presidential candidate, and potentially strip the Democrats of their razor-thin majority in the chamber.

This could create some serious obstacles for a new Biden candidate. When Barack Obama nominated Merrick Garland in March 2016 – almost a year before the end of his term – to succeed Conservative Judge Antonin Scalia, the Republican-controlled Senate refused to hold nomination hearings because the next presidential election was too soon.

The strategy worked for the Republicans when Trump won the Conservative Judge Neil Gorsuch and nominated him to succeed Scalia just days after he took office. He replaced Kennedy with Kavanaugh and the late Ginsburg with Judge Amy Coney Barrett – a nomination to which the Republican-controlled Senate reacted eagerly even though the presidential election was only weeks away.

Senate minority leader Mitch McConnell (R-Ky.) Said last month that he would block a Biden nomination if it did in 2024.

The Democrats are highly motivated to keep their seats. Aggressive attacks on abortion, transgender rights, and electoral access are all gushing out in state legislatures, and many seem like the best choices for a Supreme Court showdown.

Democratic lawmakers were unwilling to talk about what a Breyer retirement would offer, but more than a dozen progressive groups called on him to step down last month.

Replacing Breyer would likely not change the court’s ideological balance, which is currently 6-3 in favor of the Conservatives, but it would provide some protection for the Democrats if Biden could name a successor with a long career ahead of him. The court’s other two dependably liberal voters, Sonia Sotomayor and Kagan, are both in their 60s and are expected to stay on the court for at least another decade. If Breyer resigns, the decidedly conservative Thomas, 73, will take his place as the oldest member of the court, with 71-year-old Conservative judge Samuel Alito not far behind.

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