It’s no secret that Democrats want Justice Stephen Breyer to retire from the Supreme Court.
Since the party took control of the Senate in January, party activists and, more recently, lawmakers have been calling for the 82-year-old justice to step aside. Elected officials are generally respectful in their appeals. Connecticut Sen. Richard Blumenthal in April laid out the benefits of Breyer’s retirement in a mild fashion.
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“Justice Breyer has been a great justice, and he recognizes, I am sure, the political reality of our having control of the Senate now,” Blumenthal said, gesturing at the 2022 midterm elections. “But elections always have risks, so hopefully, he’s aware of that risk and he sees it accordingly.”
Activists tend to be more blunt. That same month, the liberal group Demand Justice hired a billboard truck to drive circles around the Supreme Court with the message, “Breyer, retire. It’s time for a black woman Supreme Court justice.” The group also has spearheaded a campaign for President Joe Biden to appoint one of his recent appeals court nominees, Judge Ketanji Brown Jackson, to the Supreme Court should Breyer step down.
But the White House has largely avoided the issue, at least in public. When reporters in April asked press secretary Jen Psaki if Biden had talked to Breyer about the issue, she deflected. Psaki said she was unaware of any conversations and added that if Breyer wants to retire, that’s his decision alone, “when he decides it’s time to no longer serve on the Supreme Court.”
That caution underscores an often unspoken fear about the relatively new phenomenon of pressure campaigns on Supreme Court justices. These campaigns don’t generally work, and worse, they may even have the opposite effect.
“Each justice feels that he or she can serve well and contribute and is fully cognizant of political concerns,” said Ilya Shapiro, author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court.
“The move by progressive activists to retire Breyer will have no effect on his ultimate decision at best, with some likelihood that he stays longer to avoid the perception that he’s succumbing to political pressure,” Shapiro, the vice president of the libertarian Cato Institute, said.
Breyer has already made moves indicating that he plans to stay on the court for another term. The justice, who is healthy and mentally acute by all accounts, has hired a full slate of clerks for the fall. And he’s demonstrated that he’s aware of the political concerns swirling around the court. Last month, he warned Democrats to think “long and hard” before attempting any court-packing schemes, a rebuke to liberals attempting to weaken the body’s conservative majority.
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The last time Democrats attempted to nudge Breyer off the court, the plan backfired almost immediately. During former President Barack Obama’s administration, Walter Dellinger, a former solicitor general, proposed to the president that he move Breyer into the French ambassadorship, thinking that the justice’s Francophilia would sway him into the role.
Dellinger’s plan echoed a successful 1965 ploy executed by Lyndon Baines Johnson, in which the president persuaded Justice Arthur Goldberg to leave the court for what turned out to be a dud of an ambassadorship at the United Nations. Breyer was a clerk for Goldberg at the time.
Obama never approached Breyer with the proposition, but he was not pleased when word got back to Breyer. Dellinger later told the New York Times that Breyer later pulled him aside at a dinner party and poked fun at him for thinking he could lure him off the court.
Public suggestions that Breyer retire, which flared up as the 2014 Senate election drew near, also drew hostility from the justice. Breyer, however, faded into the background as Democrats waged an intense public pressure campaign that year on Justice Ruth Bader Ginsburg to retire while Obama was still president and Democrats controlled the Senate. Ginsburg famously stared down calls for her retirement throughout Obama’s second term. Senate Democrats, meanwhile, lost their majority in 2014 and only won it back in January 2021.
Ginsburg, whose death last year allowed former President Donald Trump to appoint Justice Amy Coney Barrett to the court, intensified her resolve to stay on the court as calls for her to leave grew louder.
“Tell me who the president could have nominated this spring that you would rather see on the court than me?” she asked Reuters in 2014 when challenged on why she hadn’t retired the year before.
Before the Ginsburg pressure campaign, it was uncommon for parties to push justices to retire from the court publicly, said Jeff Shesol, author of Supreme Power: Franklin Roosevelt vs. the Supreme Court and a former speechwriter for President Bill Clinton. Still, there have been some interventions. Johnson pushed Goldberg off the court, and in 1967 did the same to Justice Tom Clark, after engineering a conflict of interest with his son, Ramsey Clark, whom Johnson made attorney general.
The Nixon White House attempted to push out the aging Justice William Douglas, one of the court’s most liberal figures. That attempt failed, even after then-House Minority Leader Gerald Ford called for Douglas’s impeachment on the House floor, accusing him of indecent extrajudicial behavior. Douglas would later retire on his own terms.
More recently, members of the court have conspired among themselves to cling to a seat. In 2005, Chief Justice William Rehnquist, who was dying of cancer, forced Justice Sandra Day O’Connor off the court, even as she was already considering her own retirement. Rehnquist, who planned to retire soon himself but did not want there to be two vacancies on the court, died in office only months later. O’Connor is still alive.
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In the most recent instance of a justice’s retirement, which was Anthony Kennedy in 2018, the Trump administration took a different tack than Democrats have done with Breyer and Ginsburg. Rather than call for the justice to step aside, Trump judicial advisers picked out a list of candidates of whom Kennedy would approve when they learned he was mulling the decision.
Kennedy ultimately made the decision to retire on his own, and Trump picked one of his former clerks, Brett Kavanaugh, to succeed him, just as Trump had chosen another one of Kennedy’s former clerks, Neil Gorsuch, to replace Justice Antonin Scalia.
