Justice Stephen Breyer, at 84, is now both the oldest and the most senior member of the Supreme Court. There is a distinction in those two descriptions. The first deals with age and the second with tenure on the Court.
What is significant about the age issue is health. The liberal community watched in horror as their icon justice, Ruth Bader Ginsberg’s health declined. And she died just in time to give President Trump an opportunity to put a third justice on the high court.
Many on the left have been hoping, begging and even demanding that Justice Breyer step down at the end of the current term this past June. They fear that he could be another Ginsberg if Republicans take back the presidency and the Senate in 2024. They are also concerned that a GOP Senate victory in 2022 would enable then-Senate Majority Leader Mitch McConnell to block any of the more liberal candidates. If a vacancy occurred close to the 2024 election McConnell could again hold up any nominations for the next President – hoping it would be a Republican. The strategy paid off big-time in 2020.
Justice Breyer appears to be in excellent health for a man his age. He is not the oldest person to have served on the Supreme Court. Justice Oliver Wendell Holmes retired at the age of 90 back in 1932. With modern advances in healthcare, Breyer has every potential of surpassing that age.
Justices usually announce their retirement at that end of a Court term in June. There was a rise in speculation this past June as the Court was closing shop. Breyer told folks that health would be is major consideration for retirement. That indicated that he would be around for at least one more term – taking him to June of 2022, the eve of the next election. A retirement then would give Democrats the appointment and the consent of a Senate in which they have a one-vote majority in the person of Vice President Harris.
While that generally would be insufficient time to vet the nominee of the President, McConnell has set the new standard by eliminating the 60-vote supermajority requirement and pushing through the Barrett nomination in record time.
If Justice Breyer does not retire next year, he will probably stay as long as possible. And at that point the future is anybody’s guess.
Liberals are still smarting over the retirement of Justice Anthony Kennedy. This gave Trump his first chance to add a justice to the Supreme Court. But justices are more likely to hang in until the end – or until their health seriously affects their ability to perform. Ginsberg stayed on beyond her ability to perform solely because she hoped to outlive the Trump presidency. Had she lived and Trump were re-elected, it is likely she would have retired soon after the election knowing she could not survive for four more years.
The other consideration is Breyer’s role as the senior member of the Court. This could have significant bearing on his ultimate decision about retirement. Breyer became the senior justice upon the death of Ginsberg at the age of 87. She was put on the Court just one year prior to Breyer.
Being the senior member of the Court is not merely an honorary title. It greatly enhances a justice’s influence and power over the Byzantine workings of the Court. Breyer is now the second most powerful justice on the Supreme Court. He is said to love his job – and with the enhanced authority he has to love it all the more.
Some pundits argued that Breyer was under a lot of pressure to resign this year. It is predictable that their may be even more calls for his retirement next year. But is it really pressure? They can call for his resignation, but they cannot really apply any pressure. He is immune to the political cross currents. Breyer has that job for the rest of his life, if he so chooses. And if his health holds out, I personally think he will not step down even next year despite all the caterwauling from the radical left.
So, there ‘tis.
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Author: Larry Horist
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