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Why Stephen Breyer is resisting liberal pleas for him to retire

All Patriot NewsApril 11, 20219min
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For nearly a decade, Justice Stephen Breyer has been brushing off calls for his retirement, and there’s no indication that he’ll give in any time soon.

Breyer, 82, becomes famously prickly when the subject arises. Last March, he told Axios that he doesn’t really think about retiring because “I enjoy what I’m doing.” In December, he shut down the same question from Slate, saying only that he plans to retire “eventually.” More recently, Breyer on Tuesday spoke out broadly against attempts to politicize the high court in a speech to a Harvard Law School audience. Notably, he remained silent on the growing calls for him to step aside.

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Breyer faces increasing pressure from Democrats since the party retook the White House and the Senate. When Justice Ruth Bader Ginsburg died in office last year, allowing then-President Donald Trump to cement the court’s conservative majority, liberal judicial activists took a major hit. Trump and the Republican-dominated Senate pushed through Justice Amy Coney Barrett’s confirmation just before the presidential election.

Even with Biden in the White House, some court watchers are worried about Breyer’s seat. After all, the memory of Justice Antonin Scalia’s sudden death on the bench still looms large in Democratic memory. As long as Republicans controlled the Senate, it didn’t matter that President Barack Obama had appointed Merrick Garland to fill the empty seat. If the party loses its razor-thin majority next year, the same thing could happen if Breyer dies.

Still, it’s unlike that if Breyer steps down, it will have very much to do with politics at all, said Christine Chabot, a law professor at Loyola University Chicago. Chabot, who has written on Supreme Court retirements, said that more often than not, justices retire for personal reasons.

“Like many other justices, Justice Breyer may be reluctant to give up a powerful and rewarding post,” she said, adding that “favorable political winds provide limited incentives to retire, because they will not guarantee Justice Breyer a successor who will vote ‘just like’ himself.”

There’s still a chance Breyer could step down midway through the Biden years, Chabot added, but he would only do it in an effort to swerve the court away from intense political fights such as the ones that occurred after Scalia and Ginsburg’s deaths.

Breyer, for his part, has been highly resistant to people attempting to nudge him away from the court. During the Obama administration, for instance, Walter Dellinger, a former solicitor general, hatched a plot to move Breyer off the court into the French ambassadorship. Dellinger, knowing that Breyer is a Francophile, wanted Obama to flatter Breyer with the post.

The plan never came off, but word did get back to Breyer, who was not pleased with Dellinger’s machinations. Dellinger later told the New York Times that Breyer soon after flagged him at a party and made light of the suggestion that he leave the court.

“So, Walter,” Breyer asked, “do you still want to ship me off to France?”

Breyer’s resistance came around the same time that Ginsburg indicated in 2013 to Obama that she had no intention of ever retiring. The two justices’ behavior stood in stark contrast to Justice Anthony Kennedy, who, after being influenced by maneuvering from the Trump administration, stepped down in 2018, making way for Brett Kavanaugh, a former clerk of his, to take his seat.

But Breyer for years has spurned such entreaties. In 2015, during an interview with ABC, he chafed at the idea that he should retire if a Democrat were elected in 2016, saying that the decision, if and when he made it, was going to be “highly personal.” When pressed, Breyer refused to give a straight answer on his plans for the future.

“I know you’re asking a direct question, and I’m giving you an indirect response, which hardly answers the question,” he told his interviewer, Jonathan Karl.

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Elsewhere, Breyer has been explicit in his condemnation of court politicization, especially when it comes to retirement, court-packing, or a push to put cameras in the courtroom. Last October, at a Q&A hosted by the Edward M. Kennedy Institute, Breyer said that all aging justices think about retirement, but they try very hard not to let politics drive their decisions.

“The more the political fray is hot and intense, the more we stay out of it,” Breyer said.

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