Stephen Breyer told CNN he hasn’t decided on his retirement plans

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Away from Washington and the stress of a recently completed hearing and chatter about his possible retirement, Breyer, a 27-year-old Supreme Court veteran, said Wednesday that two factors would be important in his decision.

“Health is of course first,” said Breyer, who turns 83 in August. Second, the court.

Liberal advocates, law professors, and some Democratic members of Congress have tried in public statements to persuade Breyer to leave the podium. They want Democratic President Joe Biden to be able to name a younger liberal while the Senate, which has the power to “advise and agree” constitutionally, has a slim Democratic majority.

Some liberals were urging Breyer to announce the departure as the justices issued their final opinions in the first week of July. But Breyer has shown no desire to leave the bench at this point, especially as he has gained more power as a senior judge on the left following the death of Ruth Bader Ginsburg last year.

When asked directly about coffee in rural New Hampshire if he had decided when to step down, Breyer simply said “no.”

He ignored questions about the timing of the decision but was willing to talk about factors that might influence him, including respect for the court. He also explained the satisfaction brought about by his leadership role in the left wing.

Breyer said his new seniority in the judges’ private discussion of cases “made a difference to me… It’s not a fight. It’s not sarcasm. It’s deliberation.”

During the last session, Breyer took the lead on several key issues, including dismissing the Third Affordable Care Act challenge, promoting student speech rights, and awarding Google a victory in the multibillion-dollar copyright infringement case brought by Oracle.

He also took on a new role in the internal debate, speaking early at private judges’ conferences, spurred on by the rhythms of seniority.

When the judges meet in private to decide how to vote on cases, the nine are on their own. They call these group sessions, “the conference.” And by old tradition, Chief Justice John Roberts speaks first, gives his thoughts on the case and casts his vote. Next comes Judge Clarence Thomas, who has been in court for 30 years. Breyer is now next in line, the first liberal with a chance to influence an issue and any cross-ideological consensus.

“You have to know what you are going to say at the conference to a greater extent, to put it simply,” Breyer said. “You have to be flexible, hear others, and be willing to adjust your opinions. But that doesn’t mean[entering]with an empty mind.”

Breyer has tried to downplay the Liberal Conservative 6-3 seat policy in these particularly polarizing times. A lengthy speech he gave at Harvard Law School last April has turned into a book due to be published in September called The Power of the Court and the Peril of Politics.

The Court’s six governors are designated Republicans who often vote together, as they did most recently to limit the scope of the 1965 Voting Rights Act, reduce the power of unions to organize on farmland and restrict the regulation of large political donors. The three Liberals, all of whom were Democratic appointees and including Breyer, strongly rejected.

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However, Breyer has long espoused a mindset of common ground, often stating that he considers opponents “losers”. In court, he has been notorious for trying to build consensus, and over the past decade the duo on the left most likely to try to compromise with the right wing was Breyer, appointed by President Bill Clinton in 1994, and Justice Elena Kagan, 2010 appointed by President Barack Obama.

summer retreat

New Hampshire’s tall trees and cool temperatures have provided Briar and his family a summer retreat for decades. His children and grandchildren still visit the family cabin regularly, and earlier this week, Justice, wife Joanna and two grandchildren were among the families featured in a story in The Valley News about their tree-knowing trip in nearby Blow-Me. Down Farm in the Corniche.

On Wednesdays in Plainfield, a rural village of no more than 2,000 people, Breyer seemed relaxed. Sheathed in a black abaya, he was wearing khaki shorts, a blue and orange short-sleeved shirt, and sandals. However, he remained a cautious speaker, refusing to talk about the court’s secret deliberations.

Liberals out of court praise his record, but as they have done with Ginsburg for years, they say he should make way for new justice, especially since Biden has a Democratic Senate.

Unlike when Ginsburg died and the Conservative-dominated court switched from 5-4 to 6-3, Biden’s new appointment will not alter the current ideological divide.

In theory, Democrats should retain the one-vote advantage through at least the November 2022 midterm elections. But activists are concerned about any sudden change in this margin. Their concerns arose against the backdrop of 2016, when then-Senate Majority Leader Mitch McConnell prevented any hearing about Obama’s selection of Merrick Garland to succeed Justice Antonin Scalia, and in 2020, when Ginsburg died and McConnell helped rush through Amy Connie Barrett as successor. In October, just days before President Donald Trump voted into office.

When the court rules in the fashionable 6-3 liberal-conservative style, Breyer, as the leading member of the left, has the power to tailor opinion to that wing. His aim, he said, was the equitable distribution of opponents in high-profile cases among themselves, Kagan and the third liberal judge, Sonia Sotomayor. To farm workers, promoting property rights, Breyer kept the dissenting opinion to himself. But then, he had Kagan write to the trio because he protested a majority decision in an Arizona case that emptied a section of the Voting Rights Act prohibiting racially discriminatory practices. Sotomayor took advantage of the opposition in California’s dispute over disclosure rules for big-money donors.

In an organization constrained by rank, Breyer knows what it means to be on the negative side of a ranking of seniority. He spent more than 11 years as the most junior judge (almost of the court’s record), simply because of the paucity of associate justice appointments in that period. Samuel Alito joined in January 2006, appointed by President George W. Bush, after Bush selected Roberts for the position of Chief Justice in 2005.

Ginsburg was named to the bench in 1993, a year before Breyer. Her tenure as Chief Justice of the Left lasted for a decade from 2010 (when Justice John Paul Stevens retired) through 2020.

Breyer’s term is unlikely to reach a decade, but he has clearly decided that it will not be a single term.

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