Speculation about the possible retirement of Supreme Court Justice Stephen Breyer, 82, continues to swirl as the Court’s current term heads toward its finish, as The Hill reports, and growing numbers of progressive activists are making their preferences about a departure quite clear.
Court watchers are on high alert about a potential end to Breyer’s time on the high court, particularly in the wake of last fall’s death of liberal icon Justice Ruth Bader Ginsburg. Many on the left believe that with Joe Biden in the White House, now is the ideal time for a vacancy to occur.
With Democrat control of the Senate hanging by a thread, liberals are concerned about seizing their opportunity to reverse the rightward shift that took place during the administration of former President Donald Trump, and they continue to lament Justice Ginsburg’s decision to remain on the court back when former President Barack Obama could have chosen her replacement.
Capital University law professor Dan Kobil explained the situation as viewed by the left, saying, “I’m sure Breyer realizes what a blow Justice Ginsburg’s non-retirement was to the possibility of ever having an even mildly progressive Court in our lifetime,” adding, “So I think he would not want to double down on what many view as her miscalculation.”
Noted progressive legal scholar and dean of the University of California, Berkeley, School of Law Edwin Chemerinksy voiced his belief that Breyer ought to retire soon, explaining to The Hill, “If one Democrat leaves for whatever reason, the Democrats could lose the Senate. For Breyer to have someone with his values and views replace him, retiring this summer could be crucial.”
Though similar pressure on Breyer has been mounting from progressive groups across the country, it has not been explicitly echoed by the president or his allies in Congress. As Politico noted, Sen. Richard Blumenthal (D-CT) – a member of the Judiciary Committee – has stated that he would “never presume to tell a Supreme Court justice to retire,” but said Breyer “is very familiar with the potential risks of a Republican president appointing his successor.”
Blumenthal added, “He is well familiar with the way judicial appointments work, and I believe strongly he has in mind the best interests of the country and will make the right decision. There are political realities that I hope judges will perceive.”
Breyer has not given many public indications of his future plans, though he did tell Axios last year that considerations such as who occupies the Oval Office at a given time and the ideological composition of the sitting justices were “not totally irrelevant” with regard to when a justice might decide to retire, as The Hill further noted. However, as ABC News noted, he has also warned about highly partisan proposals to pack the Supreme Court with liberal justices, saying:
It is wrong to think of the Court as another political institution…and it is doubly wrong to think of its members as junior league politicians.
Though Justice Breyer’s true intentions remain to be seen, if Democrats were to make any headway with their radical proposals to expand and pack the high court, his departure, should it occur soon, would just be the tip of a very alarming iceberg.