Democrats have been pinning their hopes on Justice Stephen Breyer retiring while they still have a majority in the Senate. Liberal groups have launched billboard campaigns pressuring the 82-year-old justice to call it quits, suggesting his “legacy” is at risk.
But Breyer crushed Democrats’ hopes when he told CNN in an exclusive interview that he has no plans to retire anytime soon and that he’s happy in his new role as the senior liberal on the bench. President Bill Clinton nominated Breyer in 1994.
What will ultimately determine his eventual decision to retire? “Primarily, of course, health,” Breyer explained. “Second, the court.”
Technically, the balance of the court is 6-3 in favor of conservatives. However, Chief Justice Roberts has emerged as a swing vote, and Justices Kavanaugh and Barrett have joined the liberal wing of the court in several high-profile cases lately, drawing the ire of President Trump. So if Breyer were to retire, giving Biden the opportunity to nominate a replacement, it wouldn’t change the balance of the court but could force Biden to nominate a more centrist judge should a vacancy occur in 2023 or 2024—or risk not getting to fill the vacancy at all. Senate Minority Leader Mitch McConnell has said that if he becomes majority leader again in 2022, he will likely block Joe Biden from filling a Supreme Court vacancy if one occurs in 2024.
This is not the first time Democrats have been disappointed by a liberal justice’s refusal to retire during politically convenient opportunities to be replaced by an ideological twin. Many urged Ruth Bader Ginsburg to retire during Obama’s presidency because of her old age and declining health. She refused, ultimately passing away in 2020, allowing President Trump to nominate her replacement.