Indeed, Breyer’s decision to announce his retirement now, months before the end of the Supreme Court’s term, owes much more to the present. That is, when a president can’t be sure his high court nominee can even get a hearing unless his party controls the Senate, and there’s no time to spare when that control hangs by a thread.
Just in case, Breyer said he’s not leaving until his successor is confirmed.
Breyer has been one of the justices most loudly proclaiming that political machinations could be the ruin of the institution he has served for nearly 28 years. He wrote a book about it last fall, worrying that stacking the court with additional members for partisan goals would besmirch the image of the people he says put politics aside when they put on the black robe.
“My experience from more than thirty years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote in “The Authority of the Court and the Peril of Politics.” “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
But Breyer’s decision to retire reflects another side of him, one often mentioned in descriptions of his time on the court: pragmatist.
“I think it’s clear that politics played a role” in his decision to retire, Breyer’s brother Charles, a federal district judge in San Francisco, said Thursday. “He’s pragmatic and politics is a factor . . . that has to be considered.”
It’s not the only thing, Charles Breyer said. Only in the realm of the lifetime appointments the Supreme Court affords is an inquiry launched as to why an 83-year-old really wants to retire.
“Obviously his age is a factor,” the 80-year-old Breyer said. “And he did not want to terminate his service on the court by death — that’s not the exit he wanted.”
The elder Breyer had seen what that meant for the court. Justice Ruth Bader Ginsburg’s decision not to retire when a Democratic president could name her replacement and a Democratic Senate could confirm was disastrous for liberals. She died just weeks before Election Day 2020, and was replaced by President Donald Trump’s choice, Amy Coney Barrett, who is the ideological opposite of Ginsburg and cemented a six-member conservative supermajority.
Even after that, Breyer was defensive about the idea that ideology and strength of numbers would always be the deciding factor, rather than limited rulings built on compromise. He highlighted the occasional surprise.
“The court’s decision in the 2000 presidential election case, Bush v. Gore, is often referred to as an example of its favoritism of conservative causes,” Breyer said last spring in a speech at Harvard that was the basis for his book. “But the [current] court did not hear or decide cases that affected the political disagreements arising out of the later 2020 election.”
Also, there have been liberal victories, he said.
The court “did uphold the constitutionality of Obamacare, the health-care program favored by liberals,” he said. “It did reaffirm precedents that favored a woman’s right to an abortion. It did find unlawful certain immigration, census and other orders, rules or regulations favored by a conservative president.”
Breyer said that “at the same time it made other decisions that can reasonably be understood as favoring conservative policies and disfavoring liberal policies. These considerations convince me that it is wrong to think of the court as another political institution.”
Critics often note that studies have shown clear differences in the way Republican-appointed judges and Democratic-appointed judges vote on matters such as abortion, voting laws, environmental regulation, the role of government, and the separation of church and state.
Breyer often seems to think it all evens out in the end. “It’s a big country,” he said in an interview with The Washington Post about his book last year. “It’s not such a terrible thing if you have different presidents appointing people with different outlooks, of different points of view, in a court where my first obligation is to remember I’m there for everybody.”
He made similar remarks at the White House on Thursday: “This is a complicated country; there are more than 330 million people. And my mother used to say, ‘It’s every race. It’s every religion.’ And she would emphasize this: ‘And it’s every point of view possible.’ ”
Breyer opted not to retire last term and instead come back for one in which the court would be considering whether to overturn Roe v. Wade, limit gun control laws and consider the Environmental Protection Agency’s powers on climate change.
There are some early signs the compromise he counsels may be hard to come by. He already has written two dissents as the court’s conservatives have allowed Texas’s restrictive abortion law to take effect, one Breyer says is unconstitutional.
His tone on the bench has gotten sharper. As the court held a hearing on whether the Biden administration’s plans for making large employers require workers to either vaccinate for the coronavirus or test and mask, Breyer seemed incredulous.
To a lawyer challenging the emergency standards proposed by the Occupational and Safety Health Administration, Breyer demanded: “Can you ask us — is that what you’re doing now, to say it’s in the public interest in this situation to stop this vaccination rule with nearly a million people — let me not exaggerate — nearly three-quarters of a million people, new cases every day? I mean, to me, I would find that unbelievable.”
But the court’s six conservatives sided with the challengers.
But there are more cases to hear and many decisions to come before Breyer steps down from the mahogany bench for the last time.
As the president said Thursday, as Chief Justice John G. Roberts Jr. and Justices Sonia Sotomayor and Elena Kagan and Brett M. Kavanaugh said in individual statements, as Breyer himself said, he’s an optimist.
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