The 82-year-old, who is considered a member of the Supreme Court’s liberal wing, gave an interview to CNN on Wednesday and appeared to dispel the idea that he would leave soon.
Asked whether he had decided when he would retire, he simply answered: “No.”
However, he did highlight the issues that would factor into his eventual decision. “Primarily, of course, health,” Breyer said. “Second, the court.”
The justice’s remarks are expected to come as a blow to the progressives who have urged him to step down amid concerns that if he were to die during a future Republican administration, the court’s conservative majority would be strengthened.
The quick confirmation of Justice Amy Coney Barrett, after the death of Justice Ruth Bader Ginsburg in September 2020, raised fears among progressives about the ideological balance of the court.
Before the 2016 presidential election, the Senate’s Republican majority refused to hold hearings for Merrick Garland, who was nominated to the Supreme Court by then President Barack Obama. This has exacerbated the concerns that President Joe Biden could be prevented from appointing a justice if the GOP regains control of the Senate. Democrats currently have a wafer-thin majority that relies on Vice President Kamala Harris’ tiebreaking vote.
Supreme Court justices can choose to retire whenever they wish, but some former justices have announced their decision to leave on the last day of the judicial term—when the final opinions for that term are published. Despite speculation that Breyer would do so this month, he made no announcement.
Breyer is now the most senior liberal justice on the court, which has a 6-3 conservative majority. Breyer was appointed by then President Bill Clinton in 1994, while Ginsburg had been appointed the previous year.
The justice told CNN that his new seniority had made a difference in terms of conference—the justices’ private discussions of cases.
During conference, Breyer now speaks third, after Chief Justice John Roberts and Justice Clarence Thomas, who joined the court in 1991.
He said this had “made a difference to me. … It is not a fight. It is not sarcasm. It is deliberation.”
“You have to figure out what you’re going to say in conference to a greater extent, to get it across simply,” Breyer said. “You have to be flexible, hear other people, and be prepared to modify your views. But that doesn’t mean [going in with] a blank mind.”
Newsweek has asked the Supreme Court for comment.
Update 7/15/2021 7.50am ET: This article was updated to add extra information.
