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What We Know (And Don’t Know) About Justice Breyer’s Retirement Plans

When the Supreme Court issued its last rulings for this time period on Thursday, all eyes had been on Justice Stephen Breyer.

The 83-year-old is the courtroom’s oldest member, and for months the expectation has been that the left-leaning decide would quickly retire from the courtroom so President Joe Biden might nominate a youthful alternative. Doing so would make sure that his successor is chosen by a Democratic president, avoiding a repeat of what occurred when the liberal Justice Ruth Bader Ginsburg died throughout Donald Trump’s last months in workplace. 

But this week got here and went with nary a peep from Breyer on his retirement plans. Justices sometimes announce their plans to step down at finish of the nine-month time period, or shortly beforehand. Sandra Day O’Connor did so in 2005, David Souter in 2009, John Paul Stevens in 2010 and Anthony Kennedy in 2018.

Breyer is allowed to announce a retirement at any time, however some clues he provided Friday point out he’s planning to stay round for some time. The courtroom confirmed that Breyer has employed 4 regulation clerks for the following time period ― essentially the most he’s allowed to have whereas serving on the nation’s highest courtroom. That’s a fairly certain signal he isn’t retiring, legal professional David Lat reported in Above The Law, noting that O’Connor had solely employed three clerks within the lead-up to her retirement, that Souter had none and that Stevens introduced on one. 

Kennedy is an outlier, as he had employed 4 regulation clerks for the upcoming time period when he introduced his retirement. The swing voter was reportedly on the fence about retiring up till the ultimate months of the time period, and a few stories counsel he solely agreed to step down after Trump promised he would nominate Brett Kavanaugh to exchange him. 

At 83, Stephen Breyer is the Supreme Court’s oldest justice.

Breyer, who has been on the courtroom since 1994, hasn’t provided a lot when requested about when he may step down. He instructed Slate in December that he “can’t answer this question because it is too close to something that is politically controversial.”

“I mean, eventually I’ll retire, sure I will,” he mentioned. “And it’s hard to know exactly when.”

Breyer has additionally steered that deciding to retire could be very troublesome, and that time period limits would make it a lot simpler. 

“I do think that if there were a long term — I don’t know, 18, 20 years, something like that, and it was fixed — I would say that was fine. In fact, it’d make my life a lot simpler, to tell you the truth,” he mentioned at an occasion in 2019. 

Biden, in the meantime, has made it clear that he’s able to nominate a justice when the time comes, and has repeatedly promised to make historical past by nominating a Black girl to the courtroom. Judge Ketanji Brown Jackson, whom Biden nominated to serve on the D.C. Circuit federal courtroom of appeals, has emerged as a possible front-runner for the function. That appeals courtroom has been a launching pad for a lot of different Supreme Court justices, together with Kavanaugh, Elena Kagan and Clarence Thomas.

I do assume that if there have been a long run — I don’t know, 18, 20 years, one thing like that, and it was mounted — I might say that was wonderful. In reality, it’d make my life lots less complicated, to inform you the reality.
Justice Stephen Breyer, 2019

Breyer ostensibly nonetheless has loads of time to retire whereas Biden is in workplace, however that’s not the one issue at play. Midterm elections subsequent yr might shake up the U.S. Senate, which votes to verify the president’s nominee, and doubtlessly strip Democrats of their razor-thin majority within the chamber.

That might create some severe roadblocks for a brand new Biden nominee. When Barack Obama nominated Merrick Garland to exchange the conservative Justice Antonin Scalia in March 2016 ― practically a yr earlier than his presidential time period was up ― the Republican-controlled Senate refused to conduct nomination hearings on the grounds that it was too near the following presidential election. 

The technique labored out for Republicans when Trump received and nominated conservative Justice Neil Gorsuch to exchange Scalia simply days after taking workplace. He went on to exchange Kennedy with Kavanaugh and the late Ginsburg with Justice Amy Coney Barrett ― a nomination the Republican-controlled Senate eagerly acted on, regardless of the presidential election being simply weeks away. 

Senate Minority Leader Mitch McConnell (R-Ky.) mentioned final month that he would block a Biden nomination if it occurred in 2024. 

Democrats are extremely motivated to maintain the seats they’ve. Aggressive assaults on abor-tion, transgender rights and voting entry are all effervescent up in state legislatures, and lots of appear prime for a Supreme Court showdown. 

Democratic lawmakers haven’t been keen to speak about what a Breyer retirement would supply, however greater than a dozen progressive teams known as on him to step down final month. 

Replacing Breyer seemingly wouldn’t change the courtroom’s idealogical stability, which is 6-3 in favor of conservatives proper now, however it might supply Democrats some safety if Biden might identify a successor with a protracted profession forward of her. The courtroom’s two different reliably liberal voters, Sonia Sotomayor and Kagan, are each of their 60s and are anticipated to remain on the courtroom for not less than one other decade. If Breyer steps down, the firmly conservative Thomas, 73, will take his place because the courtroom’s eldest member, with 71-year-old conservative Justice Samuel Alito not far behind. 

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