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Supreme Court Justice Stephen Breyer Hasn’t Retired — And Liberals Are Freaking Out


Associate Justice Stephen Breyer sits during a group photo of the Justices at the Supreme Court on April 23, 2021.

The Supreme Court of the United States released its final opinions for its current term on Friday, July 2.  Court-watchers predicted (indeed, many hoped) that the Court’s elder justice, 83-year-old Stephen Breyer, would announce his retirement immediately thereafter.

The custom has been that justices planning to retire announce their intentions before the Court begins its summer recess. Indeed, as the tweet below shows, almost all of the last 11 SCOTUS justices to retire announced or began their retirements at the end of a term.

Those who eagerly anticipated news of Breyer’s retirement, however, were disappointed. Rather than announce his departure from the Court, Breyer instead confirmed that he hired a full complement of clerks for the upcoming term.

Of course, the hiring of clerks in no way forecloses any justice from stepping down; still, it’s not exactly a signal of a planned departure either.

Justice Breyer spoke at Harvard last April.  His address dispelled notions of Supreme Court justices as political figures and denounced the concept of court-packing, but the justice remained conspicuously silent about any plans to vacate his seat on the high bench.

Following Breyer’s remarks, the Supreme Court did release a string of unanimous and nearly-unanimous opinions, including those relating to criminal justice, immigration, the NCAA, environmental law, and free speech. However, when more politically-charged issues pervaded litigation, the Court’s 6-3 split made several appearances. Breyer joined his usual allies, Justices Sonia Sotomayor and Elena Kagan, to dissent in cases involving voting rights, union organizers, and campaign finance.

As the Court prepares to hear cases involving hot-button political issues such as abortion and affirmative action, many on the left are becoming uncomfortable with Breyer’s decision to remain on the Court.  Despite Breyer’s insistence that justices are apolitical, it is increasingly clear that only justices appointed by a Democratic president are likely to vote as Breyer would. Given that Republicans have vowed to block all Democratic nominees to the Supreme Court, there is just one road to maintaining the current vote structure: Democrats must hold the Senate majority.

Some believe that if Republicans gain control of the Senate during the mid-term elections in 2022, we may be faced with an eight-justice Supreme Court for the foreseeable future. As Above the Law‘s Joe Patrice put it, “Having lived through the eight-justice debacle a few years ago, it’s bonkers that Breyer would risk a repeat just so he could continue to prevent another jurist from having the cool job he’s held since before first-year associates were even born.”

Critics may argue that this logic is misplaced.  Justice Ruth Bader Ginsburg died September 18, 2020, and Justice Amy Coney Barrett was sworn in on October 27, 2020.  Barrett’s lightning-fast ascension to the high court’s bench proves how swiftly the confirmation process can move when one political party controls both the Senate and the White House.  To those who observed this process last year, Breyer’s decision to remain on the court — assuming that is his decision — is not off-putting in the slightest.  He could simply step down this time next year and be replaced by someone of similar legal views.

But that ameliorative-for-liberals logic itself has its critics.  Several Senate Democrats are aging.  Sen. Patrick Leahy (D-Vt.) is 81.  If he suddenly were to hypothetically die in office, Phil Scott, Vermont’s Republican governor would appoint a replacement.  And that replacement would almost certainly be a Republican.  The fragile left-of-center majority of the Senate — currently with 48 Democrats, two liberal Independents generally aligned with the Democrats, and Vice President Kamala Harris (D) as a tiebreaker against 50 Republicans — would flip.  And the Republicans would be back in charge.  We’ve been down that deadlocked road before with Justice Antonin Scalia.

Leahy isn’t the only fear of liberals.  They also worry — perhaps less rationally — that Dianne Feinstein (D-Calif.) could somehow die in office — she’s 88 — after California Gov. Gavin Newsom (D) is recalled and replaced by a Republican.  That talk is quite far-fetched, but it is not completely insane.

To those who believe the sky is falling, Twitter offers a place to vent:

Much like that of the late (and notorious) RBG, Justice Breyer’s advanced age has not prevented him from being an active and animated presence on the bench. Despite Breyer’s acuity, though, liberals fear that an ill-timed vacancy could give the Court’s conservatives unfettered control for decades to come. And given what happened when Scalia died, many political liberals and left-of-center members of the legal profession are urging caution. They still feel the wounds of 2016 — when McConnell refused to allow Obama to appoint Scalia’s successor.

[Image via Erin Schaff/Pool/AFP/Getty Images]

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos