As the Supreme Court closes out its term in the next week, the biggest question is whether 82-year-old liberal Justice Stephen Breyer intends to retire, The Hill reported on Monday.
Liberal groups have mounted a pressure campaign for Breyer to step down in order to give President Joe Biden an opportunity to nominate a younger liberal to the Supreme Court while Democrats have a Senate majority and avoid a situation where Breyer stays on for too long and ends his career while Republicans control the White House or Senate.
Those encouraging Breyer to retire also see it as part of a larger effort for structural reforms such as court-packing to counteract what they view as a rightward tilt of the court that is at odds with public opinion and the public interest.
The unprecedented pressure on Breyer is such that earlier this year, the progressive group Demand Justice paid for a truck carrying a billboard to drive around the Supreme Court with a message encouraging him to retire.
The same group also published earlier this month a paid ad with the same message in The New York Times signed onto by a group of 18 scholars, CNN reported.
Observers are looking carefully for any indication of Breyer’s intentions, but such is the scrutiny that every act can be interpreted in different ways.
One such example was Breyer’s recent writing for the 7-2 majority that rejected a GOP-led challenge against the Affordable Care Act, according to The Hill. Chief Justice John Roberts was also in the majority but assigned the opinion to Breyer, with legal pundits arguing if the chief justice wanted a way to honor Roberts at the end of his long career or did it to encourage him to remain on the court.
CNN legal analyst Jeffrey Toobin asked is Roberts "doing this as a gesture to let [Breyer] have a big swan song in his last year? Or is he assigning those opinions because he wants to show Justice Breyer, 'Look, you're still a valued member of this court, stay with us a few years longer.' Both of these are possibilities. I don't know which one is right.”
Some insist, however, that the attempts to pressure Breyer to resign could backfire.
"If you're calling for him to retire, and then he retires, it looks like he caved to political pressure," said David Lat, who founded the blog Above The Law. "In some ways, they're making it less likely that he'll retire by putting this pressure on him, because he doesn't want to be seen as somebody who is caving to partisan concerns."
One sign that Breyer intends to stay is that he’s hired a full set of clerks for the full year, Lat said, adding the justice may be encouraged by the coalitions in the court that have emerged in recent weeks.
"If there's a case for replacing Justice Breyer, with a younger, more liberal justice, the case is weakened a little bit, because the past few weeks of Supreme Court rulings have shown us that the Supreme Court is not this out of control, crazy conservative court," Lat said. "It's actually right now at least an appropriately moderate court."
Brian Freeman ✉
Brian Freeman, a Newsmax writer based in Israel, has more than three decades writing and editing about culture and politics for newspapers, online and television.
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