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Stephen Breyer retirement watch just got a bit more interesting after his new interview

In a recent interview with the New York Times, Justice Stephen G. Breyer explained factors that may play into his decision on when to retire. (Steven Senne/AP)
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When Supreme Court Justice Stephen G. Breyer sat down last month for an interview with CNN, he left those hoping he would retire a little dejected. Breyer spoke approvingly of his relatively new status as the senior justice of the court’s left wing, suggesting he believed there was value in sticking around.

That’s not what those advocates wanted to hear. Given Democrats’ razor-thin 50-seat Senate majority, it’s not at all clear how much more time they would have to replace him on a court that has shifted substantially to the right in recent years.

His new interview with the New York Times, though, gives those advocates a little more to work with. It provides some tea leaves that suggest Breyer is also looking at this pragmatically — and even that he’s open to a conveniently timed retirement that would allow a more like-minded replacement (i.e. one chosen by Democrats).

In the CNN interview, Breyer spoke broadly about “the court” being a consideration in his decision — something I highlighted back then. In the interview with the Times, Adam Liptak got Breyer to drill down a little more on what that means:

He recalled approvingly something Justice Antonin Scalia had told him.
“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

Liptak noted that Breyer’s new book — the motivation for the interviews he’s giving — says: “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.” Breyer has been emphasizing this for a long time.

But he also, crucially, told Liptak that this emphasis on an apolitical court doesn’t necessarily apply so neatly to retirements:

That may suggest that judges ought not consider the political party of the president under whom they retire, but Justice Breyer seemed to reject that position.
He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”
“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”
That sounded correct to Justice Breyer. “That’s true,” he said.

Liptak noted that Breyer’s publisher, in setting up the interview, said the justice would not respond to questions about his retirement plans. But he also described Breyer being “at pains” to emphasize how he’s looking at this question from the standpoint of a realist.

“I’ve said that there are a lot of considerations,” Breyer said. “I don’t think any member of the court is living in Pluto or something.”

This is hardly shocking stuff. Not only have those Republican-appointed justices suggested that conveniently timed retirements are okay, but almost every recent retirement has been conveniently timed for when the party with which those justices were most aligned could choose their replacements (which can hardly be dismissed as a coincidence).

It also doesn’t mean Breyer is retiring soon or even leaning in that direction. But for a man whose book is all about an apolitical court and whose publisher said he wouldn’t talk about that subject, he sure gave the political world something to work with on that subject.

And this question remains one of the most important in Washington. Not only do Democrats have the slimmest of Senate majorities that could be gone after the 2022 election, but it conceivably might not even last until then.

It only takes one vacancy to change control, and there are often vacancies in the Senate, because of death, resignation or scandal. And 14 of the 50 Democratic senators come from states where a Republican governor could replace them or there would be an unpredictable special election with no assurances of a Democratic replacement. Half of those 14 are at least 70 years old.

That could rise to 15 if California Gov. Gavin Newsom (D) is recalled, potentially leaving a Republican governor to lead a state featuring the oldest senator, 88-year-old Dianne Feinstein. And Senate Minority Leader Mitch McConnell (R-Ky.) has made no secret he’ll continue to use all the bare-knuckle tools at his disposal to continue guiding the court to the right.

In other words, if Breyer wants to be relatively certain he wouldn’t be replaced by someone “who will just reverse everything I’ve done for the last 25 years,” time is of the essence. Sticking around could mean not just a 6-to-3 conservative court, but potentially a 7-to-2 one. He’s made clear that isn’t the only consideration, but it’s notable he’s talking about it in those terms and agrees it’s fair game for him to keep an eye on who’s going to replace him.

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