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Breyer Says His Health, Not Politics, Will Drive Decision on SCOTUS Retirement

With a fragile 50-50 control of the Senate, some Democrats want Breyer to step aside and let Biden pick a new justice.

Associate Justice Stephen Breyer sits during a group photo of the Justices at the Supreme Court in Washington, D.C., on April 23, 2021.

United States Supreme Court Justice Stephen Breyer, in his first public comments since the end of the Court’s term this summer, said he hasn’t yet come to a decision on whether he will resign from the bench soon.

Breyer, at 82 years, is the oldest member of the Supreme Court, and has been an associate justice for 27 years. In his comments, which were made during an interview with CNN, Breyer explained that his decision to retire wouldn’t be based on the political makeup of the Court (or its potential to be shaken up even more than it already has been in recent years).

“Primarily, of course, health,” Breyer said of what would drive his decision. “Second, the court.”

When asked directly whether he planned to retire or not, he gave a one-word answer: “No.”

Some are concerned that Breyer’s refusal to step down could lead to a situation similar to what happened last year with the passing of liberal Justice Ruth Bader Ginsburg at age 87 just six weeks before the 2020 general election. Former President Donald Trump immediately filled the vacancy with his conservative nominee, Justice Amy Coney Barrett. It changed the Court’s makeup from a slim 5-4 conservative majority to a solid 6-3 control by the conservative bloc.

The Democrats, many have pointed out, have only slim control of the Senate, where judicial nominees are confirmed and Biden’s best chance of appointing a younger liberal to the court is now. If any changes to the makeup of the 50-50 Senate (where Vice President Kamala Harris casts the tie-breaking vote) happen in the near future, it could result in any nominees from President Joe Biden being blocked by Republicans. Senate Minority Leader Mitch McConnell (R-Kentucky) has also publicly stated that his party would seek to block nominees from Biden if they win control of the chamber in the 2022 midterms.

“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 Brian Fallon, executive director of Demand Justice, a progressive organization that advocates for court reforms.

Breyer has shunned political thinking in recent months when it comes to whether he’ll stay or go. In his interview, it also appeared that he took great pride in being the senior member of the liberal bloc, and in that role he has been able to reduce political infighting within the Court’s chambers.

That senior status, in the Court’s private discussions on cases, “has made a difference to me…. It is not a fight. It is not sarcasm. It is deliberation,” Breyer said.

Some commentators noted that Breyer’s words seemed to suggest he was staying put in order to continue having the power to shape the High Court’s discussions.

“[I]f nothing else, there should be term limits on the supreme court, if not the entire federal judiciary,” said New York Times columnist Jamelle Bouie on Twitter. “[E]ven by the loose standards of U.S democracy, [it’s] untenable to have people with this much power serve this long without any check from the public.”

Democrats in the Senate, including Majority Leader Sen. Chuck Schumer (D-New York), have suggested, sometimes subtly, that Breyer should step down. More than a few observers viewed a recent “Dear Colleague” letter from Schumer to Democratic lawmakers as hinting to Breyer that it’s time for him to retire.

“The Senate will continue to confirm more of President Biden’s highly qualified judicial nominees. As always, Senate Democrats stand ready to expeditiously fill any potential vacancies on the Supreme Court should they arise,” Schumer wrote.

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