In an interview prompted by his new book, the 83-year-old leader of the court’s liberal wing said he is working on a decision about when to step down.
WASHINGTON — Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.
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.
“I don’t think I’m going to stay there till I die — hope not,” he said.
Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.
The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”
He paused, then added: “I don’t like making decisions about myself.”
The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.
The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.
In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.
“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.
Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
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.”
That sounded correct to Justice Breyer. “That’s true,” he said.
Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.
Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.
Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.
“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”
Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law. “Nobody really knows, but there’s a risk, and how big a risk do you want to take?” he said.
“Why do we care about the rule of law?” Justice Breyer added. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.”
Term limits were another matter, he said.
“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.
Term limits would also have a silver lining for justices deciding when to retire, he added. “It would make my life easier,” he said.
Justice Breyer said the court should be deciding fewer emergency applications on its “shadow docket,” in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling on Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Mr. Biden’s eviction moratorium.
In both, the three liberal justices were in dissent.
Justice Breyer said the court should take its foot off the gas. “I can’t say never decide a shadow-docket thing,” he said. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”
Asked whether the court should supply reasoning when it makes such decisions, he said: “Correct. I agree with you. Correct.”
He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.
“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”
New Brunswick voters have elected a Liberal majority government, tossing out the incumbent Progressive Conservatives after six years in power and handing the reins to the first woman ever to lead the province. Liberal Leader Susan Holt spent much of the campaign rolling out proposed fixes for a health-care system racked by a doctor shortage, overcrowded emergency rooms and long wait-times. She promised to open 30 community health clinics across the province by 2028. (Oct. 22, 2024)
Susan Holt has made history in New Brunswick by becoming the first woman to serve as the leader of the province’s Liberal Party, a significant milestone in the province’s political landscape. Holt’s leadership victory signals a new era of representation, gender equality, and change in the region, which has long been dominated by male politicians.
Holt’s journey to the top has been one of perseverance and dedication. Before entering politics, she built a distinguished career in the private sector, where she held numerous leadership positions. Her experience in business development and public policy has equipped her with the skills needed to navigate the complex world of politics.
In a province where women have historically been underrepresented in politics, Holt’s election represents a watershed moment. Women’s involvement in leadership roles has been steadily increasing nationwide, but New Brunswick, like many parts of Canada, has seen slower progress in achieving gender parity. Holt’s rise to the top of the Liberal Party not only shatters a glass ceiling but also serves as an inspiration for future generations of women aiming for political leadership.
As the leader of the New Brunswick Liberal Party, Holt has laid out a vision of inclusivity and progress. Her policies focus on economic development, healthcare reform, environmental sustainability, and addressing social issues that have plagued the province. She has also emphasized the importance of transparent governance and creating opportunities for underrepresented communities, making her platform both modern and forward-thinking.
Holt’s leadership arrives at a time when many voters are calling for change, especially in the face of challenges like economic uncertainty and the need for healthcare improvements. She aims to bring fresh ideas to tackle these issues while ensuring that all citizens, regardless of their background, have a voice in government decisions.
Susan Holt joins the ranks of other trailblazing women across Canada who have led provincial parties and governments. Women like former Alberta Premier Rachel Notley and Ontario’s Kathleen Wynne have paved the way, and now Holt is contributing to this growing legacy of female political leadership in Canada.
Her achievement highlights not only the growing number of women entering politics but also the demand for leaders who can bring diverse perspectives to the table. In a field often dominated by entrenched traditions, Holt’s election is a step toward a more inclusive and representative political landscape in New Brunswick.
Holt’s leadership signals a broader shift in Canadian politics, where more women and diverse voices are gaining prominence. For young women across the country, her rise serves as a powerful reminder that leadership roles are within reach, even in traditionally male-dominated spheres.
With her election, Susan Holt has proven that perseverance, skill, and a vision for change can break even the toughest barriers. Her leadership will not only reshape New Brunswick’s political future but also inspire others across Canada to pursue leadership positions and continue to challenge the status quo.
NDP Leader Carla Beck has two planned campaign events today, starting the day with an availability in Moose Jaw and then later this evening attending an event in the capital with the Regina Medical Staff Association.
Saskatchewan Party Leader Scott Moe, meanwhile, will speak in Prince Albert at the start of Voting Week in the province.
Saskatchewan residents can vote for five days starting today in the lead-up to next week’s provincial election, although polls won’t be open Sunday.
The NDP and the Saskatchewan Party are urging voters to cast their ballots early.
Voters can find their polling stations on their information cards or by visiting the Elections Saskatchewan website.
Chief electoral officer Michael Boda says there are about 810,000 registered voters in Saskatchewan.
This report by The Canadian Press was first published Oct. 22, 2024.
