As the high court’s top liberal, Justice Stephen Breyer says he hasn’t made any decision about retiring from the Supreme Court anytime soon.
In an interview that will likely raise anxiety for the Democrats, Breyer told CNN that his own health would be the primary factor in his decision.
“Primarily, of course, health,” said Breyer, 82. “Second, the court.”
The new interview effectively tosses cold water on hopes that Breyer might retire early in President Biden’s term to allow a younger liberal justice to be approved.
Breyer said he is feeling fine and answered flatly “no” when asked if he has decided about any timeframe for retirement.
The 26-year veteran justice said he is happier than ever with his role on the court. Since the death of Justice Ruth Bader Ginsburg, Breyer is the de facto leader of the court’s outnumbered liberal wing.
“(The role) has made a difference to me,” Breyer said near his home in rural New Hampshire. “It is not a fight. It is not sarcasm. It is deliberation.”
Some Supreme-watchers had thought Breyer might announce his retirement at the end of the top court’s session last week, a milestone that other justices have used to step down.
Liberals hope he retires soon so Biden can use his control of the evenly divided Senate to install a liberal replacement on the court, which conservatives already control by a dominant 6-3 margin.
Ginsburg refused similar entreaties to step down early in former President Barack Obama’s term. She died in 2020, allowing former President Trump to name her replacement.
If Breyer waits till after the midterm elections, the Senate could fall back into the hands of Republicans. Senate Republican Leader Mitch McConnell has made it clear that he would consider blocking a replacement for Breyer until after the 2024 presidential election.
That strong-arm strategy worked like a charm for Republicans after the untimely death of Justice Antonin Scalia in 2016 when McConnell blocked any consideration of a replacement until after Trump’s surprise win.
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