Associate Justice Stephen Breyer has not decided when he will retire from the Supreme Court, he told CNN in an interview published Thursday.
The two factors that would impact his retirement plans, Breyer said, are “primarily, of course, health,” and “second, the court.”
Breyer, the court’s oldest justice by nearly a decade, has faced pressure from some on the political left to step down and make way for a younger justice who would be nominated by President Joe Biden and confirmed by a Democratic majority in the Senate.
But the 82-year-old Breyer, a 1994 nominee of former President Bill Clinton, did not retire last month when the court’s most recent term ended. He told CNN that he has enjoyed his status as the senior-most justice of the court’s liberal wing, a role he assumed after the death of Justice Ruth Bader Ginsburg last fall.
The ideological tilt of the Supreme Court has been a sore spot for Democrats since 2016, when then-Senate Majority Leader Mitch McConnell (R-Ky.) refused to hold confirmation hearings for Merrick Garland, then-President Barack Obama’s pick to replace Justice Antonin Scalia. McConnell argued that voters in that year’s election should be allowed to decide which president would fill Scalia’s seat, a move that paid off for Republicans when President Donald Trump was elected to the White House.
Trump nominated three justices to the Supreme Court during his four years as president, bolstering the court’s conservative advantage from 5-4 to 6-3. The former president’s final nominee, Amy Coney Barrett, was hurried through the confirmation process with just days to spare before Trump’s defeat in last November’s election.
McConnell, who pushed Barrett’s confirmation through in the weeks leading up to a presidential election despite his 2016 insistence that voters be allowed to weigh in, has already indicated that he could block any Biden Supreme Court nominee should Republicans retake the Senate majority in 2022’s midterm elections. That suggestion has stoked concern among liberals that a delayed retirement from Breyer could put control over his replacement in GOP hands.
Breyer, for his part, has long said that outside politics should not play a role in judges’ work.
“They are loyal to the rule of law, not to the political party that helped to secure their appointment,” he said of federal judges during a Harvard law school lecture in April.