Supreme Court Justice Stephen Breyer says he hasn't decided about retirement, despite pressure from left

WASHINGTON – Associate Justice Stephen Breyer is brushing aside questions about his retirement plans – the latest signal that the senior liberal on the Supreme Court could remain on the high court for at least another term.

Breyer, 82, has faced immense pressure from progressives to step down so President Joe Biden can nominate a successor while Democrats retain a Senate majority. Days after the court’s most recent term ended, Breyer said he hasn't yet decided his future.

In an interview with CNN published Thursday, Breyer responded "no" when asked if he had decided when he will step down. The 27-year Supreme Court veteran said two factors would go into his decision: His health and "second, the court."

Given the time needed to nominate and move a candidate for the lifetime appointment through the Senate, many Supreme Court justices announce their retirement at the end of the court’s term in June or July so the president and Senate can fill the seat before the high court reopens for business in October.

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But the end of the 2020-2021 term came and went this month with no word from Breyer.

A philosophy major nominated to the court by President Bill Clinton in 1994, Breyer appeared to be relishing his role as the Supreme Court's most senior liberal justice in recent months – a position, previously held by the late Associate Justice Ruth Bader Ginsburg – that allows him to assign opinions in some circumstances.  

It was Breyer who penned the majority opinion last month thwarting the latest challenge to the Affordable Care Act – one of the court’s most closely watched cases this year. Days later, he wrote for the majority that sided with a former cheerleader who was punished for a vulgar social media post.

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In his interview with CNN, Breyer brushed aside questions about the timing of a retirement decision but was willing to speak about the factors that could influence him. He also discussed the significance of his leadership of the court’s liberal wing.

In the famously secretive conference meetings where the justices decide cases, Chief Justice John Roberts speaks and votes first on a case after the court hears oral arguments. Then comes Associate Justice Clarence Thomas, a conservative who often falls to the right of Roberts. Breyer speaks next, meaning that if he voices agreement with Roberts in conference that can send a powerful signal of a potential compromise.

Breyer told CNN his new seniority in those discussions "has made a difference to me....It is not a fight. It is not sarcasm. It is deliberation."

The confirmation last fall of Associate Justice Amy Coney Barrett days before the Nov. 3 election gave conservatives an ostensible 6-3 advantage on the court for the first time in decades. But in public remarks over the past several months, Breyer has rejected that kind of political scorekeeping, lamenting that the media and lawmakers often resort to defining a justice based on the political party of the president who nominated them.

During a two-hour address at Harvard Law School in April, Breyer rejected the idea that the justices' opinions are based primarily on partisan differences. It’s a point he has tried to drive home at the same time that Roberts has sought to insulate the court from partisan divisions on display in the last presidential election.

"The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences,” he said at Harvard. "That is not what the public thinks."

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The process for confirming a Supreme Court nominee usually takes about 70 days from the submission of the nomination to the final vote for justices confirmed from 1975 to the present, according to the nonpartisan Congressional Research Service. Barrett was confirmed last year in less than half that time.

Brian Fallon, executive director of Demand Justice, said Breyer is "acting recklessly" and that if he stays on the court the decision would be "about ego." The group is one of several on the left that took out advertising calling on Breyer to step down.  

“By all appearances, Justice Breyer is intent on making us all hold our collective breath that no Democratic senators fall ill over the next year in order to indulge his desire to continue serving on the court," Fallon said.