In recent weeks, progressives have called on Justice Stephen Breyer to retire from the Supreme Court in order to give Joe Biden a shot at appointing a younger liberal judge. But on Wednesday, the 82-year-old responded to the speculation by telling CNN that he has no imminent retirement plans and is still enjoying his time on the bench. When asked whether he has decided to step down, Breyer simply replied, “No,” and outlined the two factors at play when he does decide to call it quits. “Primarily, of course, health,” he said. “Second, the court.” Breyer, who was nominated by Bill Clinton in 1994, also acknowledged the “satisfaction” he has felt since becoming the most senior justice on the left in the wake of Ruth Bader Ginsburg’s death last year. “[It] has made a difference to me,” Breyer remarked. “It is not a fight. It is not sarcasm. It is deliberation.”
Progressives and Democrats understandably fear an outcome similar to Ginsburg’s passing, whereby Mitch McConnell, with narrow Republican control of the Senate and Donald Trump still in the White House, jammed through a conservative replacement to the 87-year-old liberal icon. The appointment of Amy Coney Barrett was Trump’s third pick during his term, giving conservatives a 6–3 majority on the Supreme Court that has led to devastating rulings on issues like voting rights. Now time is of the essence, as Democrats could lose their razor-thin Senate majority in 2022, with the White House on the line in 2024.
Democratic Rep. Mondaire Jones pushed for Breyer to step aside in April, saying, “There is no question that Justice Breyer, for whom I have great respect, should retire at the end of this term. My goodness, have we not learned our lesson?” In a CNN interview last month, Rep. Alexandria Ocasio-Cortez said that she “would probably lean towards yes” when asked if she believes that Breyer should hang it up. “I would give more thought to it, but I’m inclined to say yes,” she added.
Breyer’s comments this week quickly set off alarms on Twitter. As Brian Fallon noted, the opportunity to replace Breyer with a Biden-picked justice could slip away at any moment. “Breyer’s health is not the only factor here. He is also gambling on the health of 50 Democratic senators over the next year,” tweeted Fallon, who cofounded Demand Justice, a progressive group that calls for reforms to be made to balance the federal courts. Adam Serwer, a writer for The Atlantic, went a step further in criticizing Breyer’s decision, saying that it “reflects a pathological disregard for other human beings at this point with the consequences made clear by Ginsburg’s death.” Jamelle Bouie, a New York Times columnist, used Breyer’s announcement to demand that Supreme Court justices be subject to term limits that other federal officials face. “There should be term limits on the Supreme Court, if not the entire federal judiciary,” Bouie wrote on Twitter. “Even by the loose standards of U.S. democracy, [it is] untenable to have people with this much power serve this long without any check from the public.”
Breyer has long condemned the role that overt politics play in the makeup of the bench and in the decisions made by the court. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart. They are loyal to the rule of law, not to the political party that helped to secure their appointment,” he said in April during a lecture at Harvard Law School. “If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.
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