Stephen Breyer: Why justice is stepping down from Supreme Court after rebuffing calls to retire

Supreme Court Justice Stephen Breyer spent the last year fighting to keep the polarisation and politicisation that have swept through American politics out of the judiciary. But his decision to retire with the Senate under Democratic control reflects a recognition that his heartfelt efforts had to give way to political reality.

Mr Breyer, who was named to the high court in 1994 by then-president Bill Clinton, became a target of left-wing anger last summer when the court ended its 2020-2021 term without an announcement that he would step down to allow President Joe Biden, a Democrat, to name his replacement while Democrats could guarantee Mr Biden’s pick a confirmation hearing and vote.

Democratic activists have feared that Mr Breyer, who is 83 years old, would follow the example set by the late Justice Ruth Bader Ginsburg, who rebuffed calls to retire before the 2014 midterm elections so as to guarantee then-president Barack Obama the chance to add a third young liberal jurist to the court with the aid of a Democratic senate majority.

While Ms Ginsburg remained on the court until her death in late 2020, Mr Obama did get the chance to make a third nomination to the court when Justice Antonin Scalia died unexpectedly in February 2016. But Mr Obama’s selection, then-District of Columbia Circuit Court Judge Merrick Garland, never got so much as a confirmation hearing because Kentucky Senator Mitch McConnell, then the Senate majority leader, refused to allow the Democratic president to replace Mr Scalia — a conservative icon — with even a moderately liberal judge such as Mr Garland.

Mr Breyer pushed back against calls for him to step down, as well as calls from the left for Mr Biden to “pack” the court, in a lecture at Harvard Law School last spring in which argued that the court’s legitimacy depends on the public viewing justices as apolitical actors.

“Put abstractly, the Court’s power, like that of any tribunal, must depend upon the public’s willingness to respect its decisions, even those with which they disagree and even when they believe a decision seriously mistaken,” he said.

Mr Breyer said much of the responsibility for the public’s view of the court as a political entity stems from “a gradual change in the way the press … understand the judicial institution,” such as the practice of describing justices as simply “liberal” or “conservative”.

Justices, he said, are not “junior level politicians,” and their disagreements — in his words, “jurisprudential differences” — stem not from political considerations but from their “views as to the meaning and comparative importance of particular constitutional provisions”.

“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 the other branches,” he added.

Yet in the end, Mr Breyer’s decision to retire at the end of the court’s 2021-2022 term shows that despite his fervent wish to keep politics out of the court, recent history and the harsh realities of modern American politics are unavoidable — even for someone living the cloistered existence of a judge with life tenure.

It’s not as if Mr Breyer doesn’t have a calendar or a television. Midterm elections have not been kind to the party in power at the time. And even with a favourable US Senate map this year, Democrats stand a good chance of losing control of the upper chamber starting next January.

Nor is he completely apolitical. Before then-president Jimmy Carter named him to the First Circuit Court of Appeals in 1980, Mr Breyer was a top staffer on the Senate Judiciary Committee, then under the leadership of Massachusetts Senator Ted Kennedy.

And because he served for nearly a year on a shorthanded court thanks to Mr McConnell’s snubbing of Mr Garland, he knows Mr Biden — or any Democratic president — is unlikely to be given the dereference to nominate even a lower level position, much less a Supreme Court justice, by a Senate under control of a GOP in which many senators prefer to parrot former president Donald Trump’s lies about the 2020 election rather than recognise Mr Biden’s legitimacy.

Having seen the court go from a 5-4 conservative majority to a 6-3 split thanks to Mr McConnell’s obstruction and Ms Ginsburg’s stubbornness, Mr Breyer appears to have looked into the abyss of what a 5-2 court dominated by arch-conservatives could to do the country and decided that discretion is indeed the better part of valour.