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Justice Breyer is Asked the Inevitable in His Latest Interview

Erin Schaff/The New York Times via AP, Pool

During Thursday's episode of "All Things Considered" U.S. Supreme Court Justice Stephen Breyer spoke with NPR's Nina Totenberg about a range of issues. That being said, it was inevitable that the question of whether or not the 83-year old justice would cave to the pressure to resign would come up. 

The onslaught of calls for Breyer to resign--from far-left, progressive individuals and groups--has been intense. There is heavy demand for President Joe Biden to nominate a young, progressive justice to the Court, especially while Democrats are still in the majority. 

These are just the reactions from Thursday.

Demand Justice and Brian Fallon, the group's executive director, is particularly relentless in their calls for Breyer to retire. This is also the group which is just as preoccupied with packing the Court.

Sure enough, Senate Minority Leader Mitch McConnell (R-KY) indicated in June that it's "highly unlikely" he would let Biden fill a vacancy in 2024, should there be one and he is the majority leader.

The current majority leader, Sen. Chuck Schumer (D-NY), has weighed in, pointing out that Democrats "stand ready" to fill a vacancy. 

During the interview, however, Breyer wasn't giving any indication about when he was resigning, emphasizing that he was doing so on his own terms. 

The relevant segment was as follows:

Nina Totenberg: You did pretty well in the 2020 term. You wrote some very important opinions on the ACA, on student speech.  You have advanced some important compromises on the court this past year. So at least as I look at things now, I would guess that at some time relatively early in the upcoming term, you will announce plans to retire. Am I wrong?

Justice Stephen Breyer: I'm only going to say that I'm not going to go beyond what I previously said on the subject. And that is that I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. And when exactly I should retire, or will retire, has many complex parts to it. I think I'm aware of most of them and I am and will consider them.

Nina Totenberg: What are the factors that a Justice…?

Justice Stephen Breyer: There are quite a few, and I'm not going beyond what I said for the simple reason that I would like this interview to be about my book.

Those particularly relentless in calling on Justice Breyer to resign also referenced the court opinions Totenberg, for instance that it would be a fitting last opinion for him to write leading up to his retirement.

While the White House hasn't weighed in so much, the Biden-Harris 2020 website indicates his pledge to nominate an African-American woman to the Court. Emphasis is original:

Appoint U.S. Supreme Court justices and federal judges who look like America, are committed to the rule of law, understand the importance of individual civil rights and civil liberties in a democratic society, and respect foundational precedents like Brown vs. Board of Education and Roe v. Wade. Biden has also pledged to appoint the first African American woman to the U.S. Supreme Court, a move which is long overdue. We can’t have four more years of Trump appointees filling lifetime judiciary seats. Trump has already appointed 193 federal judges – including two Supreme Court justices. Only eight are African American. Seven Trump appointees were rated “not qualified” by the American Bar Association.

Those progressives who are obsessed with the idea of Justice Breyer resigning also seem likely concerned with the 83-year old dying on them at an inopportune time, which the late Justice Ruth Bader Ginsburg had, in their eyes, the nerve to do. 


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