WASHINGTON (AP) – After writing two of the Supreme Court’s biggest rulings this year, Stephen Breyer could say he has ended nearly 27 years as a judge and announce his retirement.
Or the 82-year-old liberal judge might think his pragmatic and collaborative approach to judgment has never been more necessary in the High Court and decide to stay.
Breyer gave no indication he plans to retire at the end of the tribunal’s term, set for Thursday. A key voting rights case and one involving California’s requirement that charities provide the names of major donors remains for the judges to decide.
Judges sometimes used the last day of the term to announce their retirements. That’s what Judge Anthony Kennedy did in 2018.
But on one occasion that might resonate with Breyer, the court’s summer recess had already started when Judge Sandra Day O’Connor said she would retire once her successor was confirmed.
Breyer and O’Connor were close in the field, employing similar approaches to their work, though she was generally more conservative.
Some liberal activists who pushed for his departure are mostly resigned to the idea that he remains on the bench of the Supreme Court.
“I guess the worst and I hope for the best, by that I mean I hope he can still make an announcement, but I’m not expecting one at this time,” said Brian Fallon, Executive Director of the progressive group of courts. Let us demand justice.
The reason for Liberal discontent: Democrats hold a slim majority in the Senate, and an untimely death or long absence of one of the older Democrats could give Republican Senate Leader Mitch McConnell all he needs to prevent the confirmation of a successor to Breyer. Unlike most laws, appointments require a simple Senate majority.
Anything that threatens Democrats’ control over the Senate could jeopardize President Joe Biden’s fulfillment of his promise to appoint the first black woman to the Supreme Court.
If nothing changes in the Senate, Breyer could also retire next year, with the mid-term legislative elections approaching.
Breyer and Judge Ruth Bader Ginsburg resisted calls to resign the last time Democrats controlled Congress and the White House, when Barack Obama was president. Then, Ginsburg died less than two months before Biden’s election.
It’s not like McConnell never frustrated Democrats before. In 2016, he blocked President Barack Obama from filling a vacant Supreme Court seat and kept Antonin Scalia’s seat open pending the outcome of that year’s presidential election, which Donald Trump won more than eight months after Scalia’s death. Last year McConnell crashed into confirmation of Justice Amy Coney Barrett just over a month after Ginsburg’s death and less than a week before the 2020 election.
Either way, a Republican-controlled Senate may have put a Trump candidate on the ground. These were two of Trump’s three Supreme Court appointments that cemented a Conservative 6-3 majority.
Breyer’s retirement and his replacement with a Biden candidate wouldn’t change that ideological balance, but Supreme Court appointments are rare enough that they still end in a pitched battle in politically polarized times.
A former Harvard professor and assistant to Senator Edward Kennedy in the 1970s, Breyer was one of the Supreme Court’s leading voices in warning against viewing judges as politicians in their robes.
Speaking to a Harvard audience in AprilBreyer said “it is wrong to think of the court as just another political institution” and urged supporters of enlarging the court to think long and hard about what it would do for the institution.
Amid the coronavirus pandemic, Breyer has spent much of his time at his home in Cambridge, Massachusetts, making a constant stream of public appearances via Zoom.
Some conservatives who lobbied for Trump’s presidential candidates said loud calls for Breyer to withdraw now from progressive groups and law professors would backfire.
“The political campaign to force Judge Breyer to retire is the worst way to do it,” said Mike Davis, founder of Project Article III, a Conservative counterpart of Demand Justice.
Breyer’s experience this year could be seen as a rationale for his approach, despite increased conservative strength on the ground.
Breyer was in several majorities with the other liberal justices in which they joined a block of conservatives. Among these was the court’s decision earlier in June to preserve the Affordable Care Act, dismissing a Republican-led challenge, in an opinion written by Breyer.
The court also unanimously ruled that Philadelphia violated the religious rights of a church-based social service agency limiting her participation in a foster care program because it will not work with same-sex married couples.
In a case with less obvious political implications, Breyer wrote the court opinion siding with a high school student who had been suspended from cheerleading after a vulgar social media post in response to not being on the varsity team.
The health care and cheerleading cases have shown “Judge Breyer’s ability to reach consensus in a pragmatic way that works for other judges,” said Washington attorney Pratik Shah, who previously worked as a legal assistant to the justice system.
Breyer’s ability to seek a broader deal, honed during his time on Capitol Hill, could be helpful in bridging the Tory-Liberal rift in the next term. The tribunal has already agreed to take on important cases concerning abortion and firearms and may add another on affirmative action in higher education. There might also be less room for compromise on these burning issues.
Another consideration for Breyer could be the identity of his eventual replacement. Judge Ketanji Brown Jackson, considered one of the top contenders for the seat, has just been raised by Biden from a Washington District Court to the Federal Court of Appeals. She also once worked as a Breyer’s paralegal at the Supreme Court.
If Breyer were to wait a year, Jackson would have that much time as a judge in the appeals court which was a stepping stone to the Supreme Court.
âShe is not yet ready to go to the Supreme Court. But in a year it may be, âsaid Davis.