The oldest Supreme Court justice says he has not decided when he will retire amid a push by Democrats to get him to step down.
Justice Stephen Breyer, a Clinton nominee, is and one of three justices nominated by a Democrat president.
The 82-year-old has faced a growing push by congressional Democrats and left-leaning groups to resign during President Joe Biden’s first term so Biden can nominate his replacement.
Fears that Republicans could flip the Senate in 2022 have added urgency to the effort, but Breyer said in a new interview that he’s not sure when he will leave the bench.
Two factors will influence the decision.
“Primarily, of course, health,” said Breyer. “Second, the court.”
Breyer also talked about the position he found himself in after the death of Justice Ruth Bader Ginsburg last year—the most senior liberal-nominated justice.
Breyer typically speaks third during deliberations on cases, after Chief Justice John Roberts and Justice Clarence Thomas. That elevated rank “has made a difference to me,” Breyer said.
“You have to figure out what you’re going to say in conference to a greater extent, to get it across simply,” Breyer said. “You have to be flexible, hear other people, and be prepared to modify your views. But that doesn’t mean [going in with] a blank mind.”
Ginsburg refused to retire during President Barack Obama’s two terms. After she died, President Donald Trump nominated Amy Coney Barrett, who was quickly confirmed by the GOP-controlled Senate.
Democrats worry a similar scenario could play out with the seat Breyer holds if he does not step down soon.
Justice Anthony Kennedy stepped down during Trump’s term, enabling the president at the time to nominate his replacement. The GOP-controlled Senate confirmed Brett Kavanaugh in a narrow vote.
Though Schumer did not mention Breyer by name, plenty of Democrats have.
“Justice Breyer, it’s time to put the Court’s long-term membership ahead of your long and distinguished career,” Rep. Steve Cohen (D-Tenn.) wrote on Twitter last month.
Demand Justice, a left-wing group run by former Hillary Clinton campaign aide Brian Fallon, recently ran an advertisement that called on Breyer to retire.
“Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the ad said.
Breyer in a recent speech at Harvard Law School said that he believes judges should be “loyal to the rule of law, not to the political party that helped to secure their appointment.”
