I hesitate to write a headline like the one above because, inevitably, the moment you try to predict the unpredictable you can easily be proven wrong. But here goes anyway. The Supreme Court’s current term ended with two decisions released yesterday. As I’ve noted before, when Justices retire they usually do it right around this time as the term is ending. Today, Bloomberg asked the court for confirmation that Justice Breyer has hired a full complement of clerks for next term and the answer came back yes:
Justice Stephen Breyer has hired a full complement of four law clerks for the next Supreme Court term, the court confirmed Friday, in a possible signal that he doesn’t have any immediate plans to retire…
With the Supreme Court finishing its current term this week, Breyer’s most likely retirement window is closing for the year. In the absence of sudden health issues, justices in recent decades have timed their retirements to coincide with the end of the court’s term.
To be clear, this isn’t new information. We’ve known since at least April that Breyer had hired three clerks and probably four, though the identity of the fourth clerk wasn’t known at the time. Justices get four clerks each and retired justices get one so if Breyer had hired only one clerk that would have been a signal he was on his way out. But with him hiring four and with the court confirming today that nothing has changed there’s a good chance he’s not going anywhere. However, there is one exception in recent history:
This brings us to Justice Kennedy, who announced his retirement on June 27, 2018. At the time of his announcement, he had hired four law clerks for October Term 2019 — clerks he actually had in place by December 2017, if not earlier. So of the past four justices to leave the Court through retirement, he was the only one to have hired a full clerk class before peacing out…
Breyer will turn 83 years old next month so literally anything could happen with his health at any time. If it does, the fact that he hired clerks obviously won’t matter. But so far it looks like he just isn’t ready to retire.
Over at New York magazine Ed Kilgore surveys the available evidence and concludes, “fearful Democrats should probably take to heart the reality that the man wants to jump into retirement under his own power and will not be pushed.”
Democrats are worried that the balance of power could shift before the 2022 election. The NY Times published a story in May noting that the fate of the Senate (and with it Biden’s agenda) depends on the health of a bunch of very old Democrats:
Patrick Leahy, 81, Democrat of Vermont, was briefly hospitalized in January. Thom Tillis, 60, a North Carolina Republican, underwent cancer treatment. Questions have been raised about the health of Dianne Feinstein, 87, a Democrat who has represented California since 1992. Vermont’s other senator, Bernie Sanders, 79, had a heart attack in 2019.
So Breyer is definitely taking a risk from a partisan point of view which is why so many progressives in the media have been calling on him to retire now but Breyer’s whole outlook is that partisanship shouldn’t define the court, including decisions about when individual justices retire. In fact, if he feels well, he could remain on the court past the 2022 election to further make that point. If so, expect progressives in the media to pull out the rest of their hair by the handful next summer.