Justice Stephen Breyer has not decided when he will retire and is especially gratified with his new role as the senior liberal on the bench, he told CNN in an exclusive interview – his first public comments amid the incessant speculation of a Supreme Court vacancy.
Far from Washington and the pressures of the recently completed session and chatter over his possible retirement, Breyer, a 27-year veteran of the high court, said Wednesday that two factors will be overriding in his decision.
“Primarily, of course, health,” said Breyer, who will turn 83 in August. “Second, the court.”
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Liberal advocates, law professors and some Democratic members of Congress have tried in public statements to persuade Breyer to leave the bench. They want Democratic President Joe Biden to be able to name a younger liberal while the Senate, which has the constitutional “advice and consent” power, holds a thin Democratic majority.
Some liberals were urging Breyer to announce a departure as the justices released their final opinions the first week in July. But Breyer has shown no desire to leave the bench at this point, especially as he has obtained more power as the ranking justice on the left after the death of Ruth Bader Ginsburg last year.
When asked directly over coffee in rural New Hampshire whether he had decided when to step down, Breyer said simply, “No.”
He brushed aside questions about the timing of a decision but was willing to speak about the factors that would influence him, including regard for the court. He also elaborated on the satisfaction his leadership role on the left wing has brought.
Breyer said his new seniority in the justices’ private discussion over cases “has made a difference to me. … It is not a fight. It is not sarcasm. It is deliberation.”
During the recent session, Breyer assumed a leading role on several major cases, including to reject a third challenge to the Affordable Care Act, to bolster student speech rights, and to give Google a victory in a multibillion-dollar copyright infringement case brought by Oracle.
He also undertook a new role in internal debate, speaking sooner in the justices’ private conferences, steered by the rhythms of seniority.
When the justices meet in private to decide how to vote on cases, the nine are alone. They call these collective sessions, the “conference.” And according to longstanding tradition, Chief Justice John Roberts speaks first, giving his thoughts about a case and casting his vote. Next comes Justice Clarence Thomas, on the court for 30 years. Breyer is now next in the order, and the first liberal to have a shot at influencing a case and any cross-ideological consensus.
“You have to figure out what you’re going to say in conference to a greater extent, to get it across simply,” Breyer said. “You have to be flexible, hear other people, and be prepared to modify your views. But that doesn’t mean (going in with) a blank mind.”
Breyer has tried to minimize the politics of a 6-3 conservative-liberal bench in these especially polarized times. A lengthy speech he gave at Harvard Law School last April has been turned into a book that will be published in September titled, “The Authority of the Court and the Peril of Politics.”
The court’s six conservatives are Republican appointees who often vote together, as they did recently to curtail the reach of the 1965 Voting Rights Act, diminish union power to organize on agricultural land and restrict regulation of big political donors. The three liberals, all Democratic appointees and including Breyer, dissented forcefully.
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Yet Breyer has long adopted a mindset of common ground and often remarks that he considers dissents “a failure.” At the court, he is known for trying to build consensus, and over the past decade the pair on the left most likely to try to compromise with the right wing have been Breyer, appointed by President Bill Clinton in 1994, and Justice Elena Kagan, a 2010 appointee of President Barack Obama.
New Hampshire’s towering trees and cool temperatures have offered Breyer and his family a summer retreat for decades. His children and grandchildren still regularly visit the family cabin, and earlier this week the justice, his wife, Joanna, and two grandsons were among the families featured in a story in The Valley News about a tree-identification excursion at the nearby Blow-Me-Down Farm in Cornish.
On Wednesday in Plainfield, a rural village of just over 2,000 people, Breyer appeared relaxed. Shed of the black robe, he wore khaki shorts, a short-sleeved blue and orange-striped shirt and sandals. Still, he remained a cautious conversationalist, declining to speak of the court’s confidential deliberations.
Liberals beyond the court praise his record but, as they did of Ginsburg for years, say he should make way for a new justice, particularly while Biden has a Democratic Senate.
Unlike when Ginsburg died and the 5-4 conservative-dominated court transformed into a 6-3 bench, a new Biden appointee would not change the current ideological split.
Theoretically, the Democrats should retain their one-vote advantage through at least the 2022 November midterm elections. But activists worry about any sudden change in that margin. Their concerns arise against the backdrop of 2016, when then-Senate Majority Leader Mitch McConnell prevented any hearing of Obama’s choice of Merrick Garland to succeed Justice Antonin Scalia, and of 2020, when Ginsburg died and McConnell helped rush through Amy Coney Barrett as a successor in October, just days before President Donald Trump was voted out of office.
When the court rules in the familiar 6-3 conservative-liberal pattern, Breyer, as the senior member of the left, has the power to assign the opinion for that wing. He said his goal is a fair distribution of the dissents in prominent cases among himself, Kagan and the third liberal, Justice Sonia Sotomayor.
In June, as the Roberts conservative majority rejected a California regulation that gave union organizers temporary access to agricultural land to speak to farmworkers, enhancing property rights, Breyer kept the dissenting opinion for himself. But then he had Kagan write for the trio as it protested the majority’s decision in an Arizona case hollowing out a section of the Voting Rights Act prohibiting racially discriminatory practices. And he tapped Sotomayor for the dissent in the California dispute over disclosure rules for big-money donors.
At an institution bound by rank, Breyer knows what it is like to be on the downside of the seniority order. He spent more than 11 years as the most junior justice (nearly the court record), simply by virtue of a dearth of associate-justice appointments in that period. Samuel Alito joined in January 2006, an appointee of President George W. Bush, after Bush’s choice of Roberts to be chief justice in 2005.
Ginsburg was named to the bench in 1993, the year before Breyer. Her tenure as the senior justice on the left ran for a decade, from 2010, when Justice John Paul Stevens retired, to 2020.
Breyer’s duration is unlikely to reach a decade, but he plainly decided it would not be a single term.