Breyer becomes major Supreme Court player as Democrats clamor for his retirement

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Justice Stephen Breyer had a banner year, even as many Democrats and activists attempted to make it his last on the Supreme Court.

Breyer, 82, had long served in the shadow of Justice Ruth Bader Ginsburg, who for decades was the most prominent liberal on the bench. But after Ginsburg’s death last year, Breyer emerged as an effective leader of the court’s left-leaning bloc. At the same time, Breyer has risen in the public eye, transforming himself from one of the court’s most obscure members to one of its most outspoken defenders.

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When the justices took off for the summer this week, Breyer left behind majority opinions in some of the most consequential cases of the year. He took the lead in deciding against Oracle in a decadelong copyright dispute with Google. The issue, whether Google could claim fair use in copying Oracle’s JavaScript code, was near to Breyer’s heart, as the justice has long opposed most copyright protections.

Breyer also wrote the majority opinion in a decision upholding the Affordable Care Act. The case marked the third time the court saved Obamacare, which Breyer often maneuvered behind the scenes to preserve. And the decision could have lasting significance. Many Republicans said afterward that opposing former President Barack Obama’s signature achievement no longer seems like a winning battle.

In one of the court’s thorniest cases of the year, Breyer wrote that a Pennsylvania high school had violated a student’s First Amendment rights by punishing her for a profanity-laced Snapchat message. The case dealt with complex questions of when and how schools can regulate student speech on the internet.

And for the first time in his career, Breyer is enjoying the prestige of court seniority. Ginsburg’s death left him as the most senior justice on the court, following Chief Justice John Roberts and Justice Clarence Thomas. That means that when Breyer is in the majority on a case and Roberts and Thomas are not, he acts as de facto chief and assigns opinions to less senior justices.

That newfound seniority meant that Breyer often found himself defending the court’s nonpartisan role in government. In April, Breyer expressed concerns about the future of the judicial system, telling an audience of students and faculty at Harvard Law School that Democrats should “think long and hard” before attempting to expand the Supreme Court. The remarks came shortly after the Biden administration commissioned a group of legal experts to study the possibility of expanding the Supreme Court.

Only a few weeks later, Breyer announced that he will release a book in September addressing the growing politicization surrounding the Supreme Court. The subject is one that Breyer has touched on many times during his nearly three-decade tenure on the court.

Still, many Democrats are pushing for Breyer to step aside. With the death of Ginsburg in mind, and only a razor-thin majority in the Senate, many Democrats in Congress fear that if Breyer dies while seated on the court, they won’t be able to replace him.

"Justice Breyer has been a great justice, and he recognizes, I am sure, the political reality of our having control of the Senate now. But elections always have risks, so, hopefully, he's aware of that risk, and he sees it accordingly," said Connecticut Sen. Richard Blumenthal in April, urging Breyer to retire as soon as possible.

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Other advocates were blunter. In early April, as the court was hearing arguments in cases, the liberal group Demand Justice drove a billboard truck around Capitol Hill with a sign reading: "Breyer, retire. It's time for a black woman Supreme Court justice," a reference to President Joe Biden's promise to appoint a black woman to the Supreme Court.

Breyer, for his part, has remained coy about his retirement plans. The justice in December told Slate that he planned to step aside “eventually.” Last March, he told Axios that he doesn’t really think about retiring because “I enjoy what I’m doing.”

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Tags: News, Stephen Breyer, Supreme Court, John Roberts, Joe Biden, Richard Blumenthal, Harvard, Retirement, Ruth Bader Ginsburg

Original Author: Nicholas Rowan

Original Location: Breyer becomes major Supreme Court player as Democrats clamor for his retirement

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