Justice Stephen Breyer disclosed he is thinking about who might succeed him as he wrestles over when to retire, something liberals who want another Democratically appointed judge on the Supreme Court have been urging him to do for months.
Breyer, 83, said the judicial philosophy of whoever comes after him and the possibility his successor could pull the court in a different direction are not lost on him as he considers when to leave the court.
“There are many things that go into a retirement decision,” Breyer told the New York Times in an interview. “I don’t think I’m going to stay there till I die — hope not.”
Breyer said he was sympathetic to something the late Justice Antonin Scalia, an appointee of former President Ronald Reagan who was a conservative heavyweight on the court for nearly 30 years, once told him.
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“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Breyer said. “That will inevitably be in the psychology” of the decision of when to retire.
Breyer, nominated by former President Bill Clinton and has sat on the court since 1994, has shirked the wishes of some vocal Democrats and liberal activists who pushed him to retire so President Joe Biden can nominate his replacement.
He said in July that becoming the most senior justice following Justice Ruth Bader Ginsburg’s death gave him a new appreciation for the court and his role in its deliberations.
“No,” he said when asked if he had determined when he would retire.
“Breyer is holding on because he enjoys his new power — exactly the kind of thing he should be called out for,” Christopher Kang, chief counsel for liberal activist group Demand Justice, tweeted at the time.
Sen. Richard Blumenthal, a Connecticut Democrat, has also publicly advocated Breyer’s retirement.
“Justice Breyer has been a great justice, and he recognizes, I am sure, the political reality of our having control of the Senate now. But elections always have risks, so, hopefully, he’s aware of that risk, and he sees it accordingly,” Blumenthal said in April.
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Despite the posture of his jurisprudence — he voted with the majority to establish the Obergefell same-sex marriage precedent and dissented from the court’s decision on Thursday to block the Biden administration’s eviction moratorium — Breyer further diverges from liberals by frequently expressing a more conservative position regarding the court’s function. For example, he remains deeply skeptical of expanding the Supreme Court and initiating other changes to its operations.
“Think twice, at least,” he said in the new interview on the question of expanding the court. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”
