For months, liberal groups have called on Breyer to step down while Democrats’ control of the Senate would allow Democrats to confirm a replacement nominated by President Joe Biden.
When the court’s final day of the most recent term came and went without a retirement announcement, it seemed that those calls may have fallen on deaf ears. Speaking to CNN’s Joan Biskupic in New Hampshire this week, Breyer confirmed that he had not yet decided when he would retire, prompting a new round of liberal anger that his refusal to leave could help Republicans nab yet another Supreme Court seat.
“Especially after Justice Ruth Ginsburg lost her bet on her own longevity, with the rest of us forced to pay, it’s astonishing that Justice Stephen Breyer would court the same risk,” Samuel Moyn, a Yale Law School professor who signed a letter with several other academics calling on Breyer to retire, said by email.
Another signatory of that letter, University of Houston Law Associate Professor Daniel Morales, told CNN by email that Breyer was “playing Russian roulette.”
“It’s not a good look,” he said.
In the Senate, where Democrats have largely sought to distance themselves from the pressure effort, there was at least some acknowledgment of what Breyer’s decision to stay was risking.
“I’m very concerned about the sustainable liberal wing of the party,” Sen. Richard Blumenthal of Connecticut, a member of the Judiciary Committee, told CNN. “And I’m very concerned about the court right now because it seems to have a very rightward tilt, and we need balance, which Justice Breyer provides.”
He and other Democrats were quick to add that they believe the decision should be left up to Breyer.
“I want him to stay in that position as long as he wants to,” Senate Judiciary Chairman Dick Durbin of Illinois told CNN. “It’s his decision and his alone.”
Seared deeply into their memories, however, is how the recent years of Supreme Court judicial nomination politics have played out. Former President Donald Trump was able to put three justices on the court, shifting conservative control from 5-4 to 6-3. One of those seats was filled because then-Majority Leader Mitch McConnell blocked President Barack Obama from replacing Justice Antonin Scalia, who died unexpectedly in 2016. Ruth Bader Ginsburg’s death in 2020 let Trump and Republicans fill the third seat with Justice Amy Coney Barrett, shrinking the liberal bloc from four to three.
A question of Breyer’s health — and the health of 50 senators
In his comments to CNN earlier this week, Breyer said his health would be the primary factor in deciding the timing of his departure, and that secondarily he’d consider “the court.” He also indicated that he was enjoying serving as the most senior member of the court’s liberal wing.
The comments prompted accusations that he was placing his personal legacy ahead of the voters who put Democrats in charge of the Senate and the White House.
Demand Justice, a progressive group that had been leading the calls that Breyer retire, issued a searing statement that said his comments showed that his decision to stay was “about ego.”
Miranda Yaver, an Oberlin College political science assistant professor who signed the academics’ letter, expressed frustration about Breyer calling his health the main determinant of his retirement timeline.
“We’ve seen egregious consequences of a Supreme Court justice who was gambling on her own health and misjudged the extent to which she would be able to serve on the Supreme Court,” she said. “He’s also gambling on the health of the 50 senators who would be able to confirm his replacement.”
Sen. Patrick Leahy, a Vermont Democrat, recently experienced health problems that were a reminder of how quickly Senate Democrats could lose the votes they need to confirm a justice.
McConnell, now the Senate minority leader, has already hinted that if Republicans are in control of the chamber, he’ll block confirmation of a Democratic nominee to the Supreme Court yet again. Even without any health surprises, the Kentucky Republican’s ability to do so could come after the 2022 elections, where Democrats will be battling against the headwinds that White House incumbents typically face in the midterms.
The perception of partisan influence
The “Breyer retire” campaign led by Demand Justice and other groups prompted anxiety in some quarters of the legal world that it could backfire. Others, like UC-Berkeley School of Law Dean Erwin Chemerinsky, contended that Breyer would have made his decision to stick around without or without the outside calls for him to leave.
Regardless, Breyer has shown sensitivity to perceptions of political influence at the court. He has an upcoming book about the threat of “political intervention” eroding public trust in the court. In April he gave a speech bashing the use of “liberal” or “conservative” to describe justices on the court.
The recent calls for him to retire may have made Breyer “less likely” to step down, said CNN senior legal analyst Elie Honig, “because the perception will be that he did it for political or strategic partisan reasons.”
“If you look at Breyer, he’s been clear that he is very much averse to any public perception or beholden to either political party,” Honig said.