Supreme Court Justice Stephen Breyer turned 83 earlier this month, making him the oldest member of the U.S. Supreme Court, and based on remarks he made in an interview with The New York Times, it sounds like he’s ready to leave the high court so his replacement will be made by a Democratic president.
In the Times piece, which was written by Adam Liptak, Justice Breyer noted:
He recalled approvingly something Justice Antonin Scalia had told him.
He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.
Breyer also reacted favorably to a comment made by a late chief justice when it comes to whether retirement from the court was a judicial act and should be free of political considerations:
He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”
“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”
That sounded correct to Justice Breyer. “That’s true,” he said.
All of this, Aaron Blake of the Washington Post suggests, sounds like Breyer is leaning toward announcing his retirement:
“In other words, if Breyer wants to be relatively certain he wouldn’t be replaced by someone ‘who will just reverse everything I’ve done for the last 25 years,’ time is of the essence. Sticking around could mean not just a 6-to-3 conservative court, but potentially a 7-to-2 one. He’s made clear that isn’t the only consideration, but it’s notable he’s talking about it in those terms and agrees it’s fair game for him to keep an eye on who’s going to replace him.”
Imagine how angry Senate Minority Leader Mitch McConnell (R-KY) will be if Breyer does indeed step down and allow Biden to name his successor. That makes the prospect of Breyer’s retirement even sweeter.