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Stephen Breyer says he hasn’t decided when he’ll retire from Supreme Court

▶ Watch Video: Progressive activists call on Supreme Court Justice Stephen Breyer to retire

Washington — Justice Stephen Breyer, the senior member of the Supreme Court’s liberal wing, said he hasn’t made a decision about when he will retire, his first public comments on the matter since progressive groups began pushing him to step down to allow President Biden to name a replacement.

In an interview with CNN, Breyer, who turns 83 in August, said the decision would come down to two factors: “Primarily, of course, health. Second, the court.” Asked directly if he had made a decision about stepping down, Breyer replied, “No.”

Breyer’s comments come amid a months-long campaign from progressives urging him to retire and allow the president to name a successor while Democrats hold a slim, and fragile, majority in the Senate. While his retirement would not alter the ideological makeup of the Supreme Court, since Breyer is likely to be replaced by a fellow liberal jurist, it would position Mr. Biden to name a new justice who can serve for decades. Conservatives on the court currently hold a 6-3 majority.

Justice Stephen Breyer sits during a group photo of the justices at the Supreme Court in Washington, D.C., on April 23, 2021.

ERIN SCHAFF/POOL/AFP via Getty Images

The president has repeatedly vowed to name the Supreme Court’s first Black woman justice if a vacancy on the high court were to arise during his presidency. Judge Ketanji Brown Jackson, tapped by Mr. Biden to the influential U.S. Court of Appeals for the District of Columbia Circuit, is considered to be a top contender for the high court. Jackson, who was confirmed to the D.C. Circuit  in June, clerked for Breyer.

Breyer has served on the court for 27 years, and became the highest-ranking liberal justice following the death of Justice Ruth Bader Ginsburg last year. He authored majority opinions in two high-profile cases during the court’s most recent term: The first saving the Affordable Care Act from a Republican-led effort to dismantle it and the second setting limits on schools’ ability to punish students for off-campus speech.

The justice told CNN that his newfound seniority during the court’s internal discussions “has made a difference to me … It is not a fight. It is not sarcasm. It is deliberation.”

In April, Breyer also pushed back on calls by some progressives to expand the court to add more liberal justices, saying in a speech that proponents of reforms like “court packing” should “think long and hard before they embody those changes in law.”

“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on other branches,” he said.



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