National Public Radio’s Nina Totenberg just interviewed Justice Breyer about his new book. During the interview she asked if he was ready to retire. “I would guess that at some time, relatively early in the upcoming term, you will announce plans to retire. Am I wrong?” Totenberg asked. Breyer refused to say when it would happen.
Breyer replied, “I’m only going to say that I’m not going to go beyond what I previously said on the subject. And that is that I do not believe I should stay on the Supreme Court, or want to stay on the Supreme Court, until I die.” He continued, “When exactly I should retire, or will retire, has many complex parts to it. I think I’m aware of most of them and I am and will consider them.”
When pressed he said he wasn’t going to go into the factors that made up the decision because he wanted the interview to be about his book. I think his answer is clear enough. He knows the window could be closing for a Democratic Senate to confirm his replacement, but he’s not going to be shoved out the door by panicked progressives.
Nevertheless, NPR’s write up of the interview focuses on the fact that Breyer’s comments are likely to set off another round of angry progressives demanding he retire.
Breyer’s remarks, while not a surprise — he hired four clerks in July for the court’s next term — are likely to anger progressive activists who believe that the 83-year-old justice should make way for a younger nominee who holds his — and their — values and views. They want him to step down while Democrats still narrowly control the Senate and before the 2022 midterms, when control of the chamber is at stake.
Progressives fear a replay of the situation following the death in September 2020 of 87-year-old Justice Ruth Bader Ginsburg, which allowed President Donald Trump to nominate — and for the Republican-controlled Senate to quickly confirm — Amy Coney Barrett, giving conservatives a 6-3 supermajority on the Supreme Court. Ginsburg didn’t step down in 2014 when both the presidency and the Senate were in the hands of Democrats.
I think progressives are just desperate for a win. Biden’s administration has become such a shambles lately that you can’t blame them for feeling edgy about their prospects to hold onto the Senate. Replacing Breyer would give them back some sense of control.
NPR has released one other segment of the same interview. In this one, Totenberg suggests that maybe the court’s decision on the Texas abortion law is evidence the court has been politicized and therefore maybe it’s time for term limits for Justices or some other systemic change.
Breyer for his part says he thinks the decision was “very, very, very wrong” but added, “I wrote a dissent and that’s the way it works.” In other words, the fact that the left is not getting its way isn’t proof the system is broken. I don’t think he’ll ever convince progressives of that.