Justice Stephen Breyer, one of the left’s most important voices on the Supreme Court, has been considering retirement for months, friends and associates say. With a liberal safely ensconced in the White House, Breyer, who was appointed by Bill Clinton in 1994, may see it as the perfect opportunity to leave while he’s still upright.
At 82, Breyer is ready. But he’s worried that the left will take the opportunity of his retirement to initiate all sorts of unwanted changes to the court.
Politically driven change could diminish the trust Americans place in the court, Breyer said in the prepared text of a long speech he gave remotely Tuesday to Harvard Law School students, faculty and alumni.
His talk, Breyer said, “seeks to make those whose initial instincts may favor important structural (or other similar institutional) changes, such as forms of ‘court-packing,’ think long and hard before embodying those changes in law.”
Breyer, a Harvard law alumnus who also taught at the school, is the court’s oldest justice at 82. President Joe Biden’s election and Democrats’ paper-thin Senate majority have prompted talk that Breyer, appointed by Democratic President Bill Clinton in 1994, could soon retire, perhaps as early as the summer.
What Breyer is most concerned about is the notion that the Supreme Court is just another political group and the justices are “junior league politicians.”
He noted, for example, that despite the court’s conservative majority, the court in the past year refrained from getting involved in the 2020 election, delivered a victory to Louisiana abortion clinics and rejected former President Donald Trump’s effort to end legal protections for immigrants who were brought to the United States as children.
Even when the court’s conservative majority was 5-4, there was compromise and an attempt to find common ground. Having one dominant view of the Constitution does not always mean siding with one party or the other in all circumstances.
Breyer acknowledged that conservative views prevailed in other decisions.
“These considerations convince me that it is wrong to think of the Court as another political institution,” he said.
Breyer’s speech was part of Harvard’s Scalia Lecture Series, named for the late Justice Antonin Scalia. Breyer and Scalia were high-court colleagues for more than two decades.
Scalia was also a close friend of leftist Justice Ruth Bader Ginsburg, which may have been one of the oddest couples in a town known for unlikely pairings.
But the danger is that the left will take advantage of the situation and try to ram through Congress “structural” changes to the court — including adding three or four leftist members. But there will almost certainly be a few Democrats who would resist those changes, so the Court is probably safe — at least for now.
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