Breyer’s future is Supreme Court’s biggest question

Justice Stephen Breyer’s future is the biggest question as the Supreme Court winds down its term in the next week.

Close observers of the court are scrutinizing any tea leaves they can find for possible clues on the 82-year-old liberal justice, questioning whether several major majority and dissenting opinions in recent weeks offer any evidence on his plans.

Breyer is under intense pressure from liberal activist groups and some progressive lawmakers to step down from the court while a Democrats is in the White House, giving President Biden a chance to nominate a younger liberal to the court at a time when the party also holds a slim majority in the Senate.

After former President Trump nominated three justices to the court in four years — including the successor to liberal Justice Ruth Bader Ginsburg after her death last September — progressives are having waking nightmares that another liberal justice will hang on at the court for too long and the window will again close on appointing a liberal successor.

Earlier this year, underscoring the unprecedented pressure Breyer is coming under, the progressive group Demand Justice paid for a billboard mounted on a truck to circle the Supreme Court with a message urging him to retire.

Those looking for signals from Breyer have little to look through.

The justice has given few if any signs on his plans.

Breyer’s most prominent opinion was writing for the 7-2 majority that rejected a Republican-led challenge against the Affordable Care Act.

The moment was notable in part because Chief Justice John Roberts was also in the majority but assigned the opinion to Breyer, raising speculation among legal pundits over whether the chief wanted to honor his colleague at the end of his long career — or was enticing him to stick around.

“The question we will ask, is he doing this as a gesture to let him have a big swan song in his last year?” CNN legal analyst Jeffrey Toobin said during a segment on Thursday. “Or is he assigning those opinions because he wants to show Justice Breyer, ‘Look, you’re still a valued member of this court, stay with us a few years longer.’ Both of these are possibilities. I don’t know which one is right.”

Christine Kexel Chabot, a law professor at Loyola University Chicago who has studied how judges time their retirements over the years, said the move is open to interpretation.

“I think there’s a question as to whether is this one of the great achievements of his career that he was able to forge this coalition in the challenge to the Affordable Care Act, or does he feel like he should keep going, and maybe he will also be able to continue playing that role in some of the hot-button cases that are going to be decided by the court next term,” Chabot said.

Some court watchers believe that the effort to pressure Breyer to resign could backfire on the left.

“If you’re calling for him to retire, and then he retires, it looks like he caved to political pressure,” said David Lat, a legal blogger who writes about the court on his newsletter Original Jurisdiction and founded the blog Above the Law.

“The people who are asking him to retire are generally people on the left who want him to be replaced by a younger, liberal justice, but in some ways, they’re making it less likely that he’ll retire by putting this pressure on him because he doesn’t want to be seen as somebody who is caving to partisan concerns,” he said.

Lat says that he sees signs that Breyer intends to stay at the court, noting that he’s hired a full set of clerks for the full year. He also believes that Breyer may be encouraged by the coalitions that have emerged in recent weeks.

“The court has, I guess you could say, been on its best behavior,” he said. “So if there’s a case for replacing Justice Breyer with a younger, more liberal justice, the case is weakened a little bit, because the past few weeks of Supreme Court rulings have shown us that the Supreme Court is not this out of control, crazy conservative court. It’s actually, right now at least, an appropriately moderate court.”

Progressives see a court that has been dominated by conservative priorities for decades and that categorically favors the wealthy and business interests at the expense of labor unions, environmental regulations and consumer protections.

Some of those concerned about the Supreme Court’s rightward tilt have called for structural reforms like court-packing to counteract what they see as an ideological capture that is at odds with public opinion and the public interest. Pushing for Breyer’s retirement has become a part of that larger effort.

Samuel Moyn, a Yale Law professor who was among a group of academics who called on Breyer to step down this month, has called for structural reforms to the court, specifically limiting its power to strike down laws passed by Congress. Moyn said that the public debate over whether Breyer should retire has rested on an illusion that the court is independent of politics.

“It’s sort of like trying to do the impossible,” he said. “Keeping the court apolitical, which it’s not, or keeping up the appearance that it’s apolitical, which if it ever made sense, it’s too late because the cat is out of the bag with both parties trying to achieve control over the Supreme Court.”

Moyn said he finds the “Kremlinology” around trying to predict Breyer’s plans a disturbing reminder of how much hinges on a single official’s career plans. 

“Of course, it makes sense to try to figure it out,” he said. “But if we leave the discussion there, we never ask, should they enjoy this power? And why are we playing guessing games about these inscrutable rulers, instead of restoring our own self rule?”