In an interview published Thursday, judiciary Justice Stephen Breyer said that he doesn’t want his successor to “reverse” his work and that it’s OK for a justice to time his retirement for political reasons — comments that indicate he might resign while joe-biden” target=”_blank”>President Biden<.
He did caution that there are many other factors that will go into the decision.
U.S. Supreme Court Associate Justice Stephen Breyer is seen during a group portrait session for the new full court at the Supreme Court in Washington, U.S., Nov. 30, 2018. Breyer spoke to The New York Times Thursday about his potential retirement plans. (REUTERS/Jim Young)
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The comments, however, did not appear to satisfy progressives who have been calling on Breyer to retire for months, citing the thin Democratic majority in the Senate that may become a minority after the midterm elections. Breyer has been a frequent target of those progressives since he made comments earlier this year against packing the Supreme Court.
“Honestly, my guy. PACK IT IN,” Rewire Senior Law and Policy Editor Imani Gandy said Friday. “THERE’S A DEMOCRAT IN THE WHITE HOUSE. THE DEMOCRATS HAVE A RAZOR THIN MAJORITY IN THE SENATE. WHAT THE ABSOLUTE F— IS BREYER WAITING FOR.”
Breyer is the oldest liberal justice on the court, an ideological minority that shrunk to just three justices after the death of Justice Ruth Bader Ginsburg in 2020. She was replaced by Justice Amy Coney Barrett.
Some liberals called on Ginsburg to resign while President Obama was in office, but she refused. Ginsburg died weeks before the 2020 presidential election, allowing former President Trump to replace her just days before he was bested in the November election by President Biden.
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Many on the left are determined not to let Breyer do something similar.
Clara Jeffery, the editor-in-chief of Mother Jones, cited the eviction moratorium case decided Thursday as reason for the justice to step down.
“Dear Justice Breyer: the radical decisions from SCOTUS this week are your clue. RETIRE,” she said.
Breyer was in the dissent on the decision that struck down the Center for Disease Control and Prevention’s eviction moratorium. Breyer also disagreed with the majority earlier this week when the court refused to block a lower court’s order that forced the government to bring back the “Remain in Mexico” immigration policy.
Some conservatives, meanwhile, say that the pressure progressives are exerting on Breyer is unseemly. Judicial Crisis Network President Carrie Severino told Fox News earlier this year it shouldn’t be “rewarded.”
“The level of pressure that left-wing dark-money groups have exerted against Justice Breyer to attempt to strongarm him into retiring has been shameful and disrespectful,” Severino said at the end of the most recent Supreme Court term. That is when the retirement speculation around Breyer reached a fever pitch before dying down.
But Breyer himself said in The New York Times interview that justices are allowed to take politics into account when retiring. The Times asked Breyer if he agreed with the late Chief Justice William Rehnquist’s statement that such calculations are “not inappropriate.”
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“Deciding when to step down from the court is not a judicial act,” Rehnquist also said.
“That’s true,” Breyer responded, according to the Times.
Breyer also addressed Democrats’ calls to pack the Supreme Court, telling the Times that people should, “[t]hink twice, at least… If A can do it, B can do it. And what are you going to have when you have A and B doing it?”
But no matter the political situation, Breyer did say he hopes to retire from the court eventually.
“I don’t think I’m going to stay there till I die — hope not,” Breyer told the Times.
