Stephen Breyer's 'Strategic Retirement' Could Save Supreme Court Seat from GOP

Supreme Court Associate Justice Stephen Breyer's decision to retire from the nation's highest court could have been motivated by his desire to be succeeded by a likeminded judge, experts have told Newsweek.

Breyer, who was named to the Court by then President Bill Clinton in 1994, formally announced he would retire on Thursday and that decision has given President Joe Biden the chance to nominate his successor.

Supreme Court justices do not usually give a reason for choosing to retire and they are not required to leave the Court during their lifetimes, but Breyer's move comes at a time when Democrats control the White House and the Senate.

That has led to speculation that Breyer has chosen to retire so a Democratic president can choose his replacement.

The late Associate Justice Ruth Bader Ginsburg, who was also a member of the Court's liberal wing, was criticized for not retiring while Democrats controlled the White House.

Her death in 2020 allowed then President Donald Trump to fill her seat—a situation that may have played a role in Breyer's decision.

Strategic Retirement

Paul Collins, a legal studies and political science professor at the University of Massachusetts, in Amherst, told Newsweek that Breyer may have considered the upcoming midterm elections.

"Breyer's decision to retire now is a classic example of a strategic retirement," Collins said.

"He waited to retire until Democrats controlled the Senate and occupied the White House, and did not take the risk that Democrats might lose the Senate in the 2022 midterm elections," he said.

"I have no doubt that Ruth Bader Ginsburg's fate weighted heavily on Breyer," Collins went on. "Despite mounting pressure, Ginsburg held out, hoping Hillary Clinton would win the 2016 election and name her successor. Breyer did not want to take this risk and timed his retirement to give Democrats plenty of time to confirm his successor before the November elections."

Losing Another Seat

Kent Greenfield is professor of law and Dean's Distinguished Scholar at Boston College of Law. He told Newsweek that Breyer would not want to risk his seat being filled by a Republican nominee.

"Justice Breyer has an excellent sense of politics," Greenfield said.

"I think he always knew he was going to resign this term, but that he was allowing Biden some room to pass his infrastructure and Build Back Better plans," he said.

"But now that Build Back Better is on the ropes, Breyer has the political space to announce his resignation. I do not think he would have risked losing another SCOTUS seat to the GOP," he said.

Greenfield also pointed to the midterm elections and the potential difficulty of Biden appointing any justice to the Court if Democrats lose.

"Democrats have barely enough votes to confirm a nominee without any GOP support," said Greenfield. "We are now in a world where SCOTUS nominees are likely to be confirmed, or not, by straight (or nearly straight) party line votes. If the GOP retakes the Senate in the midterms, I would not expect Biden to be able to get any later nominee through the Senate."

Choosing a Successor

Justin Crowe, associate professor of political science at Williams College, told Newsweek it was "hard to imagine the potential flip of the Senate back to Republicans in 2022" wasn't part of Breyer's calculation.

"Despite his frequent claims that the Court is not a partisan institution, Breyer once admitted that he was taken by Justice Scalia's one-time comment that justices don't want to replaced by someone who would reverse everything they'd done for the previous 25 years," Crowe said.

"If he wants a Democratic president to choose his successor, then the best way to secure that is to retire now, with a Democratic president in office and Democratic control of the Senate," he said.

Crowe noted Senate Minority Leader Mitch McConnell's refusal to hold hearings on former President Barack Obama's nomination of Merrick Garland in 2016 and the possibility that the Republican would not hold hearings for a Biden nominee if he becomes majority leader again in 2023.

"Breyer has to know that a Republican Senate may well decline to confirm anyone Biden nominates to replace him in favor of holding the seat open in the hope that a Republican defeats Biden in 2024," Crowe said.

President Biden has said he will nominate a Black woman to succeed Breyer, fulfilling a commitment he made during the 2020 presidential election. There has already been significant speculation about who that nominee will be.

Stephen Breyer Holds a Pocket Constitution
U.S. Supreme Court Associate Justice Stephen Breyer holds up a pocket Constitution as he speaks about his coming retirement in the Roosevelt Room of the White House on January 27, 2022 in Washington, DC. Breyer's retirement will allow President Joe Biden to appoint his successor. Drew Angerer/Getty Images