U.S. Supreme Court Justice Stephen Breyer didn’t say yes, and he didn’t say no. But what he did do speaks so loudly that it could put a temporary end to high-profile efforts to pressure him into retirement.
Headlines late this week related the news that the 82-year-old Breyer has hired four new law clerks for the high court’s fall term.
“The move signals that Breyer may not have plans to retire soon.”
“Progressives have called for Breyer to step down so Biden could nominate his successor.”
Breyer has been the target of an unprecedented campaign by media outlets, liberal interest groups and individual Democrats to create so much public pressure that he would resign from the nine-member court.
But federal judges are insulated from public or political pressure because they are granted lifetime tenure by the U.S. Constitution. At the same time, Breyer has indicated the court should be above partisan politics.
There’s a very simple explanation why so many Democrats are apoplectic over Breyer’s continued service on the high court — Ruth Bader Ginsburg.
She, too, was a veteran high court jurist who refused to step down while former President Barack Obama was in office. When she died suddenly of cancer during the final year of former President Donald Trump’s term, it allowed Senate Republicans to confirm the third Trump nominee to the court — Amy Coney Barrett.
Although the justices often do not vote in ideological lockstep, Barrett’s confirmation gave conservatives a 6-3 majority on the court. Time, of course, is critical, but it is not determinative.
If Breyer resigned at the end of the court’s term next summer, Senate Democrats could confirm his successor in 2022. Plus, Democrats could retain control of the Senate in the November 2022 election, allowing them to continue to confirm appointments of liberal jurists to the federal courts.
Liberals, however, prefer not to take any chances and have gone far out of their way to make their position clear.
“Time for Justice Breyer to Go,” was the headline of a Juan Williams column.
“Stephen Breyer is making a strong case for Supreme Court term limits,” opined the Washington Post’s Paul Waldman.
One interest group — Demand Justice — took out an ad in the New York Times signed by a group of law professors.
“It is time for Justice Stephen Breyer to announce his intent to retire from the Supreme Court. Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the advertisement stated.
While some are urging Breyer to exit stage left, others have observed that he has never been more influential on the court.
Veteran Supreme Court reporter Joan Biskupic writes that Breyer “has taken a commanding role ... writing decisions preserving Obamacare and bolstering students free speech” and “forcefully dissenting for the left wing.”
Appointed in 1994 by former President Bill Clinton, Breyer is the court’s oldest member.
Next oldest in age are justices Clarence Thomas and Samuel Alito, who are 73 and 71, respectively.
It is not unusual for justices to remain in their positions far into their senior years. The late Justice John Paul Stevens served on the court until he was 90, when he retired. Justice William O. Douglas died at 81 while still on the court, as did former Chief Justice William Rehnquist, who was 80.
While not making any Supreme Court appointments, Biden, like Trump did with conservatives, is moving quickly to fill lower court vacancies with liberals, many of whom are women or members of minority groups.
Jim Dey, a member of The News-Gazette staff, can be reached at firstname.lastname@example.org or 217-393-8251.