During a Harvard Law School lecture last April, Justice Stephen G. Breyer made clear that he viewed the judiciary as divorced from politics. Once a judge takes an oath, the Supreme Court jurist said, “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
But just three days later, a new phase in an extraordinary year-long campaign was launched to pressure Breyer to rethink his loyalties and focus far more on the political party that helped secure his appointment and the court’s dwindling liberal minority. A group of Democratic operatives circulated an online petition. Activists protested his events. Op-eds appeared in newspapers. A truck circled the Supreme Court building with a billboard that read: “Breyer, retire.”
It was the start of a remarkably public push on the political left to pressure Breyer, 83, the high court’s oldest justice and one of its three liberals, to retire while Democrats controlled the White House and Senate and make way for a younger nominee installed by President Biden. Activists were motivated by the experience of Justice Ruth Bader Ginsburg, the liberal icon who died in office in 2020 and was replaced by President Donald Trump’s nominee, conservative Amy Coney Barrett.
The campaign was carried out by various groups and politicians — not always acting together, and with some delivering their messages far more discreetly than others — that culminated this past week with Breyer’s announcement that he would soon step down after serving since 1994.
Breyer’s brother, U.S. District Judge Charles Breyer, said in an interview, “Of course he was aware of this campaign. I think what impressed him was not the campaign but the logic of the campaign. And he thought he should take into account the fact that this was an opportunity for a Democratic president — and he was appointed by a Democratic president — to fill his position with someone who is like-minded.”
“He did not want to die on the bench,” Charles Breyer added.
A court spokeswoman said Justice Breyer is not giving interviews at this time about his decision to retire.
The ghosts of nominations past hung over Breyer’s deliberations. Many Democrats recall how President Barack Obama was stymied before the 2016 election by Republicans who refused to hold hearings on Merrick Garland, his nominee to fill the seat of the late Antonin Scalia.
Then there was Ginsburg. The experience of her remaining on the bench throughout Obama’s presidency and denying Democrats the opportunity to fill her seat with a younger liberal, only to pass in the waning weeks of the Trump presidency, caused many Democrats to rethink how forcefully they would press for Breyer to retire.
Rep. Mondaire Jones (D-N.Y.), who last April became the first member of Congress to call on Breyer to retire, said, “I don’t like talking about it because it’s a sensitive subject. People adore Ruth Bader Ginsburg. But the fact is, due to decisions or non-decisions around retirement, made by her, we got Amy Coney Barrett.”
In the case of Breyer, the mission for Democrats was complicated because Breyer, despite having once been a staffer in the office of Democratic Sen. Edward M. Kennedy, prized the notion of keeping the court free of politics and talked about the importance of the separation of powers. It was further complicated in that Biden — who as the nation’s oldest president often talks about age as more how old you feel than how old you are — was not in a firm position to push the idea that an elderly judge step aside.
Inside the White House, senior officials had known for months that Breyer’s retirement was almost imminent, long before he officially announced his decision in a letter to Biden last Thursday, according to two people with knowledge of the matter.
Late last fall, senior White House aides were informed Breyer was close to a decision, and they had expected him to make the announcement he would retire in early 2022, according to the people, who spoke on the condition of anonymity to disclose private conversations.
The news of Breyer’s expected retirement, a closely held matter inside the White House, reassured senior Biden aides that the president was extremely likely to have the opportunity to nominate a replacement justice before the midterm elections in November and allow him to fulfill a campaign promise to nominate the first Black woman to the Supreme Court.
Once White House officials knew Breyer’s retirement was likely imminent, they felt less pressure to ask emissaries to engage in conversations with the justice about stepping down at the end of this term, the people said.
Biden himself never asked Breyer, whom he has known since the 1970s and whose nomination Biden oversaw when he was chairman of the Senate Judiciary Committee, about retiring. In fact, since Biden took office, the president and Breyer had not spoken directly before their joint event at the White House on Thursday, according to two people with direct knowledge of their interactions, speaking on the condition of anonymity to describe internal matters.
A White House spokesperson declined to comment.
Charles Breyer said, “The White House decided, I guess, to leave him alone. That it’s his decision and he shouldn’t be subjected to White House pressure — and that it could have a negative effect.”