If Justice Stephen Breyer plans to retire this summer, he’s waiting until the very end of the Supreme Court’s term to make that announcement.
Breyer, who has given no public indication of his plans, has reached the month at which many recent retiring justices have stepped aside. And the longer he stays on the bench, the harder Democrats push him to leave. The rationale, according to both activists and elected officials, is that Breyer should step aside as quickly as possible while Democrats still control the Senate.
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After all, that’s almost exactly what happened when President Barack Obama took office in 2009. In early May, just a few months after Obama’s inauguration, Justice David Souter announced his retirement, making way for Justice Sonia Sotomayor. Souter had told friends in private that he had plans to leave the bench as soon as possible if Obama won the 2008 presidential election.
The next year, Justice John Paul Stevens made an even earlier move, announcing his retirement in April, before the court had finished hearing cases for that term. Stevens, who, like Souter, was a liberal appointed by a Republican, was replaced by Justice Elena Kagan, then Obama’s solicitor general. Souter’s departure marked the last time Obama had a chance to leave a mark on the court. By the time Justice Antonin Scalia died in early 2016, Republicans had firm control of the Senate.
Breyer so far has frustrated hopes that he will step aside easily. His reticence comes as Democrats have set their sights on reworking the judicial system. In the few public appearances he has made this year, the 82-year-old justice has said repeatedly that he believes Democrats are becoming too reckless in the way that they treat the court. Breyer told a Harvard University audience in April that Democrats need to think “long and hard” about court-packing. In May, he said that his next book will focus in part on the dangers of court expansion.
This week, Breyer told students at Philadelphia’s National Constitution Center that he was “basically optimistic” about the future of the government. The justice also discussed his private life: his newfound affinity for meditation, his exercise routines, and his favorite TV shows. At no point, however, did Breyer touch on the pressure campaign for him to retire.
Still, there is a likelihood that Breyer could announce his plans sometime in June. The last justice to retire, Anthony Kennedy, waited until the end of the month in 2018. Kennedy was motivated in part by the fact that Trump’s first Supreme Court nominee was Neil Gorsuch, one of his former clerks, and that Trump’s shortlist included other former clerks, including Brett Kavanaugh, who eventually succeeded him on the court.
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Breyer is in a similar situation. One of the Biden administration’s Supreme Court favorites, D.C. federal District Judge Ketanji Brown Jackson, clerked for him at the beginning of her career. Jackson is currently facing a full Senate vote on her confirmation to the U.S. Court of Appeals for the D.C. Circuit, which is commonly seen as a stepping stone to the Supreme Court.
Of course, no one will be stepping up to the Supreme Court if Breyer chooses to stay on the bench. The justice is notoriously evasive when the question is raised. He did not respond to the Washington Examiner’s request for comment, and when Slate asked him a similar question in December, his reply was cryptic: “eventually.”
