Having a lifetime appointment to a position means you get to choose the time and place of your retirement. For Supreme Court Justices, that typically comes at the end of a Court term, when retirement speculation arises nearly every summer. This year the buzz has been about 82-year-old Stephen Breyer, appointed by Bill Clinton in 1994 and the Court’s senior liberal since Ruth Bader Ginsburg’s death last year.
Most of the chatter arose from progressives hoping he’d step down before Republicans get the chance (which they would likely exercise if they retake the Senate next year) to block filling his seat until the White House is in their hands, as they did when Antonin Scalia died in 2016. There is also some excitement about Joe Biden’s promise to place a Black woman on the Court for the first time at his earliest convenience. A lot of Breyer’s public fussing lately about the threat of a politicized judiciary has been interpreted as pushback against the idea that he ought to take one for the team.
And sure enough, Breyer has indicated he isn’t going anywhere:
Sometimes a retiring justice will wait a bit before making the big announcement, like Sandra Day O’Conner did in 2005. On other occasions, justices may hire clerks for the next term only to retire anyway, as Anthony Kennedy did in 2018.
Possibly after what is expected to be a consequential 2021-2022 term, Breyer will have had enough, and will step down in time for Democrats to confirm a successor before they face voters in the midterm elections. In the meantime, 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.