WASHINGTON – After writing two of the Supreme Court’s biggest decisions this year, Stephen Breyer could say he’s come to a fitting end of nearly 27 years as a justice and announce his retirement.
Or the 82-year-old liberal justice could reason that his pragmatic, collaborative approach to judging has never been more needed on the high court and decide to stick around.
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Breyer has given no indication he plans to retire at the end of the court’s term, set for Thursday. Left for the justices to decide are a key case on voting rights and another involving California’s requirement that charities provide the names of major donors.
Justices have sometimes used the term's last day to announce their retirements. That's what Justice Anthony Kennedy did in 2018.
But on one occasion that could resonate with Breyer, the court's summer break had already begun when Justice Sandra Day O'Connor said she would retire once her successor had been confirmed.
Breyer and O'Connor were close on the court, employing similar approaches to their work, though she was generally more conservative.
Some liberal activists who have been pushing for his departure are mostly resigned to the prospect that he will remain on the Supreme Court bench.
“I am assuming the worst and hoping for the best, by which I mean I’m hopeful he might still make an announcement, but I’m not expecting one at this point,” said Brian Fallon, executive director of the progressive court group Demand Justice.
The reason for the liberal discontent: Democrats hold a narrow majority in the Senate, and an untimely death or lengthy absence by one of the older Democrats could give Senate Republican leader Mitch McConnell all he needs to prevent a successor to Breyer from being confirmed. Unlike most legislation, nominations require a bare Senate majority.
Anything that threatens Democrats’ control of the Senate could imperil President Joe Biden’s fulfillment of his pledge to name the first Black woman to the Supreme Court.
If nothing changes in the Senate, Breyer could retire next year as well, in the run-up to the congressional midterm elections.
Breyer and Justice Ruth Bader Ginsburg resisted calls to step down the last time Democrats controlled Congress and the White House, when Barack Obama was president. Then, Ginsburg died less than two months before Biden's election.
It's not as if McConnell hasn't frustrated Democrats before. In 2016, he prevented President Barack Obama from filling a Supreme Court vacancy and kept Antonin Scalia's seat open awaiting the outcome of that year's presidential election, won by Donald Trump more than eight months after Scalia's death. Last year, McConnell rammed through the confirmation of Justice Amy Coney Barrett just over a month after Ginsburg's death and less than a week before the 2020 election.
In both cases, a Senate under Republican control was able to put a Trump nominee on the court. Those were two of Trump's three Supreme Court appointments that cemented a 6-3 conservative majority.
Breyer's retirement and replacement by a Biden nominee wouldn't alter that ideological balance, but Supreme Court nominations are sufficiently rare that they always result in a pitched battle in politically polarized times.
A former Harvard professor and aide to Sen. Edward Kennedy in the 1970s, Breyer has been among the leading Supreme Court voices cautioning against viewing the justices as politicians in robes.
Speaking to a Harvard audience in April, Breyer said that "it is wrong to think of the Court as another political institution” and urged supporters of expanding the court to think long and hard about what that would do to the institution.
In the midst of the coronavirus pandemic, Breyer has spent much of his time at his home in Cambridge, Massachusetts, making a steady stream of public appearances via Zoom.
Some conservatives who pushed hard for Trump's judicial nominees said the loud calls for Breyer to step down now from progressive groups and law professors would backfire.
“The political campaign to force Justice Breyer to retire is the worst possible way to do it,” said Mike Davis, the founder of the Article III Project, a conservative counterpart to Demand Justice.
Breyer's experience this year could be seen as a vindication of his approach, despite the enhanced conservative strength on the court.
Breyer has been in several majorities with the other liberal justices in which they joined with a bloc of conservatives. Among those was the court's decision earlier in June to preserve the Affordable Care Act, rejecting a Republican-led challenge, in an opinion Breyer wrote.
The court also unanimously ruled that Philadelphia violated a church-based social service agency's religious rights by limiting its participation in a foster care program because it won't work with married same-sex couples.
In a case with fewer obvious political implications, Breyer wrote the court's opinion siding with a high school student who had been suspended from cheerleading after a vulgar social media post in response to not making the varsity team.
The health care and cheerleading cases showed “Justice Breyer’s ability to achieve consensus in a pragmatic way that’s agreeable to other justices,” said Washington attorney Pratik Shah, who once worked as the justice's law clerk.
Breyer's skill in seeking broader agreement, honed during his time on Capitol Hill, might be useful in bridging conservative-liberal disagreement next term. The court already has agreed to take on major cases dealing with abortion and guns and could add another on affirmative action in higher education. There also might be less room for compromise on these hot-button issues.
One other consideration for Breyer could be the identity of his eventual replacement. Judge Ketanji Brown Jackson, seen as a leading candidate for the seat, was just elevated by Biden from a trial court in Washington to the federal court of appeals. She also once worked as a Breyer law clerk at the Supreme Court.
If Breyer were to wait a year, Jackson would have that much time as a judge on the appeals court that has been a steppingstone to the Supreme Court.
“She’s not ready right now to go on the Supreme Court. But in a year she might be,” Davis said.