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WASHINGTON – Maybe it’s his swan song.
Or maybe Stephen Breyer is just getting started.
As speculation swirls about whether the 82-year-old Supreme Court associate justice will retire, Breyer has taken the lead on some of the court’s most notable recent opinions. As the term that began in October now comes to a close, he appears to be relishing his role as the most senior member of the court’s liberal wing.
Often described as an optimist and a pragmatist, it was Breyer who penned the majority opinion last week thwarting the latest challenge to the Affordable Care Act – one of the court’s most closely watched cases this year. Days later, he wrote for the majority that sided with a former cheerleader who was punished for a vulgar social media post.
At a time when he is under mounting pressure from the left to step down so President Joe Biden may name his successor, Breyer has been careful about not signaling his plans. But as the current term winds down – which is the time when justices usually announce their retirement – the guessing game over his future has reached fever pitch.
Meanwhile, Breyer is churning out opinions.
"Breyer has been waiting his entire life for a moment like this. For the first time, he is now the leader of the court’s liberal bloc. And he is wielding that power in effective ways," said Artemus Ward, a political scientist at Northern Illinois University who published "Deciding to Leave" in 2003, a book about the politics of Supreme Court retirements.
"Why would a justice who is at the apex of his career and wielding extraordinary power and influence for the first time in his life, particularly at a time when the nation and the court is vulnerable, voluntarily give up that power by retiring and therefore fueling the narrative that the justices are partisan politicians in robes?" Ward asked.
Feel for politics
By tradition, the most senior justice in the majority or the minority assigns the opinion for the group – or takes it for themselves. Because he is the most senior of the court's liberals – a dwindling group that also includes Associate Justices Sonia Sotomayor and Elena Kagan – Breyer may now have more opportunities to make that call.
Ward noted another area where Breyer is likely having influence: In the famously secretive conference meetings where the justices decide cases. Chief Justice John Roberts speaks and votes first on a case after oral arguments. Then comes Associate Justice Clarence Thomas, a conservative who often falls to the right of Roberts.
Breyer speaks next in the meeting, meaning that if he voices agreement with Roberts in conference, perhaps on narrow grounds, then that can send a powerful signal of a potential compromise between the court's conservatives and liberals. Ward said that dynamic appeared to be playing out this term, as other justices have joined Roberts and Breyer in key cases.
First Amendment: Court sides with cheerleader who wrote profane social media post
With the court readying for an ambitious next term in which the justices are set to hear blockbuster cases on abortion and gun rights, the question is whether Breyer’s seniority and the compelling lineup will nudge him toward sticking around another term.
Working against the "sticking around" theory is that Breyer, a former aide to the late Sen. Ted Kennedy who has served in all three branches of government, has a good feel for politics. He watched as the late Associate Justice Ruth Bader Ginsburg’s decision not to step down before Republicans won control of the Senate in 2014 and the White House two years later resulted in today's 6-3 conservative majority on the court.
"It is an open question whether these successes have led Breyer to feel that his work at the court should come to an end," said Christine Kexel Chabot, a professor at the Loyola University Chicago School of Law and the author of 2019 study noting that the high court's justices often defy expectations when it comes to retirement timing.
"Is it time for him to throw in the towel, or does he feel that he should try to keep writing opinions that will unite ideologically diverse coalitions of justices in the future?"
Holding the mic
Some academics and liberal groups have leaned hard into the notion that Breyer should step down while Democrats can confirm his replacement. The party’s thinnest of Senate majorities could be upended by the 2022 midterm elections, or even sooner.
The pressure campaign has included newspaper advertisements and even a mobile billboard with the words "Retire Breyer" circling the Supreme Court building this year. Rep. Alexandria Ocasio-Cortez, a New York Democrat and prominent progressive voice, this month said she was "inclined to say yes" when asked if Breyer should step down.
Breyer has appeared on the virtual stage several times during the pandemic, recently regaling a group of grade schoolers about his meditation routine, his exercise and television habits and his "basically optimistic" view of Washington. He used an address at Harvard University in April to slam proposals to add more justices to the court.
One of the broader themes he often sounds – that both the court and the country aren’t as divided as some think – has gotten a lift as the court's term has neared its close with several surprising unanimous opinions and splits that didn’t fall along traditional lines.
Breyer’s limited opinion in the Obamacare case brought four of the court’s conservatives together with three liberals. In that opinion, Breyer sidestepped constitutional questions and instead concluded the conservative states seeking to upend the 2010 law did not have standing to sue because they weren’t harmed by the provision at issue.
Days later, Breyer wrote for the majority in a major First Amendment case centered on a high school student who, after failing to make the varsity cheer squad, published a profanity-laced social media post that caught the attention of her coaches, who cut her from the JV team. Despite thorny questions about when schools can regulate off-campus speech, seven of the eight other justices joined Breyer’s opinion.
Breyer, whose father worked as a lawyer for the school board in San Francisco, concluded the school overstepped its authority but also rejected the position of the U.S. Court of Appeals for the 3rd Circuit that schools may never regulate student speech off-campus. School officials told the court they were concerned about bullying, cheating and other misbehavior that take place off-campus but still harm education.
"It might be tempting to dismiss [the student's] words as unworthy of the robust First Amendment protections discussed herein," Breyer wrote for the majority. "But sometimes it is necessary to protect the superfluous in order to preserve the necessary."
Breyer also wrote a vigorous dissent Wednesday, joined by Sotomayor and Kagan, in a dispute over a California law that allowed union organizers to enter private farms to speak with farmworkers. A majority of the justices held that access was an unconstitutional taking of private property. Breyer said it was not, and raised alarms about how the majority's opinion would affect government safety inspections.
But Breyer, a philosophy major nominated to the high court by President Bill Clinton in 1994, has avoided the kind of sweeping pronouncements in his opinions that legal observers sometimes parse for signals about a justice’s future intentions.
Before Associate Justice Anthony Kennedy retired in 2018, the court’s swing vote wrote a concurring opinion upholding the third iteration of President Donald Trump’s travel ban – a dispatch some saw as a rebuke of Trump and a signal of his departure.
Kennedy wrote there were times when government officials were not subject to judicial scrutiny but “that does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” Kennedy retired the next day.
Breyer, so far, hasn’t made similar mic drops.
"Breyer is behaving like a justice who has only just begun to strategically deploy his new, considerable powers," Ward said. "At a time when the court and the nation needs him."
This article originally appeared on USA TODAY: Will Justice Breyer retire? Observers see no clues in his opinions.