Justice Breyer: Not Inappropriate for Politics to Affect Retirement Decision

Justice Stephen Breyer said he’s struggling to decide when to retire from the Supreme Court, telling The New York Times he doesn’t want his replacement to reverse everything he’s done for the last 25 years.

“That will inevitably be in the psychology [of my decision],” he told the news outlet. “I don’t think I’m going to stay there till I die — hope not.”

Breyer, 83, is the court’s oldest member and the senior member of its three-member liberal wing. He has been pressured by progressives to step down so President Joe Biden can replace him with a younger liberal judge.

“There are a lot of blurred things there, and there are many considerations,” he told the Times about his thinking process. “They form a whole. I’ll make a decision.”

He then added: “I don’t like making decisions about myself.”

Breyer was asked about a remark made by late Chief Justice William Rehnquist on whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

“No, it’s not inappropriate,” Rehnquist said. “Deciding when to step down from the court is not a judicial act.”

“That’s true,” Breyer said.

In promoting his new book “The Authority of the Court and the Peril of Politics,” Breyer said the court’s authority has been undermined by people who label justices as conservative or liberal.

He said the justices acted in good faith even though politicians have magnified partisan differences.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” Breyer asked the Times, referring to Justice Neil Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

In his book, Breyer wrote about the political issue this way: “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

Breyer was also asked about Biden’s commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.

“Think twice, at least,” Breyer said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”

As for term limits, he said: “It would have to be a long term, because you don’t want the person there thinking of his next job.”

Breyer also said the court should decide fewer emergency applications on its “shadow docket,” in which the justices often issue rulings based on thin briefings and no oral arguments, the Times said.

“I can’t say never decide a shadow-docket thing,” he told the Times. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”

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