Progressive activists are watching the end of the Supreme Court session for a possible retirement announcement from Stephen Breyer, the court's oldest current justice. Breyer will turn 83 in August. Erin Schaff/The New York Times via AP/Pool
For Erwin Chemerinsky, this is a familiar feeling: Seven years ago, the dean of the University of California Berkeley School of Law publicly called for Justice Ruth Bader Ginsburg to retire from the Supreme Court because he reasoned too much was at stake in the 2016 elections.
Ginsburg didn't listen then, but he's hoping Justice Stephen Breyer will listen now — but Breyer has given no indication whether he plans to stay or go.
"If he wants someone with his values and views to take his place, now is the time to step down," Chemerinsky told NPR.
Progressive activists are hoping that Breyer, who will turn 83 in August, will announce he is retiring Thursday, the same day the Supreme Court delivers its final two opinions of the term. But a justice can decide to retire at any time — though both Anthony Kennedy and Sandra Day O'Connor announced their respective retirements at the end of the court's session.
Chemerinsky is part of a growing rank of progressives who are breaking with the polite, political norms of the past when it comes to questioning service on the Supreme Court. Ginsburg's death last year and the subsequent appointment of Amy Coney Barrett to deliver a conservative supermajority on the court had a lot to do with that.
"I think a lot of people who thought that silence was the best approach in 2013 came to regret that in the aftermath of [Ginsburg's] untimely passing last year," said Brian Fallon, executive director of Demand Justice. "I think it would be foolish of us to repeat this same mistake and to greet the current situation passively and not do everything we can to signal to Justice Breyer, that now is the time for him to step down"
Since Democrats took control of the Senate in January, Demand Justice has organized public demonstrations, billboard and ad campaigns, and assembled a list of scholars and activists to join their public pressure campaign for Breyer to retire.
The risk, as Fallon sees it, is twofold. The first is the perils of a 50-50 Senate.
"The Democrats are one heartbeat away from having control switch in the Senate," he said. "There's a lot of octogenarian senators, many of whom have Republican governors that might get to appoint a successor to them if the worst happened."
The second is the 2022 midterms when control of the Senate will be in play.
"If [Senate Minority Leader] Mitch McConnell reassumes the Senate majority leader post, at worst, he might block any Biden pick, and at best, Biden is going to have to calibrate who he selects in order to get them through a Republican-held Senate."
Both Chemerinsky and Fallon concede the public campaign is not without some risk.
"I've certainly heard from some that this might make him less likely to retire, perhaps to dig in his heels," Chemerinsky said.
The campaign has also not caught fire on Capitol Hill, where only a small handful of progressive senators have — tactfully — suggested they'd like to see Breyer retire of his own accord.
Sen. Jeff Merkley, D-Ore., told CNN this month he did not support any Senate-led pressure campaigns on the court, but he added: "My secret heart is that some members, particularly the 82-year-old Stephen Breyer, will maybe have that thought on his own, that he should not let his seat be subject to a potential theft."
Senate Judiciary Chairman Dick Durbin, D-Ill., also distanced himself from the public retirement push, telling NPR: "I'm not on that campaign to put pressure on Justice Breyer. He's done an exceptional job. He alone can make the decision about his future. And I trust him to make the right one."
Absent any change in the status quo, Democrats will control the Senate at least until 2023. If the court's session ends without a retirement announcement, Fallon said he expects the calls for Breyer's retirement will grow louder. It's all part of what he said is a new, more aggressive position on the Supreme Court from the left.
"In some way, we are trying to make a point that progressives for too long, have taken a hands-off approach to the court," he said. "And they've been sort of foolish for doing so because the other side doesn't operate that way."
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