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Why Justice Breyer Is Not Stepping Down from the Supreme Court

Why Justice Breyer Is Not Stepping Down from the Supreme Court

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.

About The Author

Larry Horist

So,there‘tis… The opinions, perspectives and analyses of Larry Horist Larry Horist is a businessman, conservative writer and political strategist with an extensive background in economics and public policy. Clients of his consulting firm have included such conservative icons as Steve Forbes and Milton Friedman. He has served as a consultant to the Nixon White House and travelled the country as a spokesman for President Reagan’s economic reforms. He has testified as an expert witness before numerous legislative bodies, including the U. S. Congress. Horist has lectured and taught courses at numerous colleges and universities, including Harvard, Northwestern, DePaul universities, Hope College and his alma mater, Knox College. He has been a guest on hundreds of public affairs talk shows, and hosted his own program, “Chicago In Sight,” on WIND radio. Horist was a one-time candidate for mayor of Chicago and served as Executive Director of the City Club of Chicago, where he led a successful two-year campaign to save the historic Chicago Theatre from the wrecking ball. An award-winning debater, his insightful and sometimes controversial commentaries appear frequently on the editorial pages of newspapers across the nation. He is praised by readers for his style, substance and sense of humor. According to one reader, Horist is the “new Charles Krauthammer.” He is actively semi-retired in Boca Raton, Florida where he devotes his time to writing. So, there ‘tis is Horist’s signature sign off.


  1. Dan Tyree

    He likes the money and power. And just maybe he sees how crazy that the left is

    • Jay


  2. TML

    I agree and the Democrats are actually practicing “ageism” something they are supposed to be against!

  3. Anonymous

    Justice Beyer could very well live through two more Presidents’ terms. For that matter he could put live you or me. The point is, does he function at a level of competence expected for justices.
    Justices hold positions supposedly apolitical and above deciding cases on basis other than truth, fairness, and the Law.
    However, they received the job by Presidential nomination and pass Senate scrutiny. They carry the party of the President who appointed them on their back and that party’s expectations on rulings.
    In the end, it the justices strength of character and thorough understanding in Law and steel like moral under pinnings are more determinative than political party.RGB made no secret about her opinion, but she was an outlier in that regard.
    Justices true to there oath should not be swayed by political party, nor should it matter which President nominated them.
    The whole argument proves that politics infiltrates every aspect of life today. No subjects are safe from political bent. The weather once was safe, but that changed with Global Warming. Justice Beyer is free todo as he sees fit, it his personal choice.

  4. Arthur

    Justices are nominated by Presidents from both parties and presidents do so thinking that their choice will decide on the bench in line with the a certain party’s politics. Justices’ politics are their own business, The Judicial Branch especially the Supreme Court, by designs is intended as an apolitical body to keep check on the Administrative and Legislative Branches. Therefore, either party’s man in the White House can select and Senate approve someone. Yet the person becoming a member on the Court takes an oath which honors neither party. It held justices accountable to We the People. The are not beholden to the right or the left.
    Division in this country begins and fights all the day long over politics. One is either a rightest conservative or a leftist liberal. And, it seems in today’s cultural climate the two are like oil and water. The do not and will not mix. Because, no thought is tendered about simply agreeing to disagree and finding common ground, there is the them vs us mentality.
    Liberals are all bad, the thinking is. and not a one not siding with the right is not trustworthy. Liberals, many are disappointed in their fellow citizens on the right. Neither understands how the other can be of that mind and not see.
    Politics has long been how people view government, governing, and policy implementation. In the present day, politics has invaded and over ridden all aspects of one’s life. Conversations become tense in a hurry when the talk broaches an issue in which people differ.
    Issues separating long time friends, family members, neighbors, and in any relationship, the common denominator in contention is political. Calmly exchanging ideas and rational discussion has gone out of vogue. Even the boring old subject that for ever was believed safe is now a minefield locked and loaded. One must do a discover project of questions before finding out if the weather as a subject is safe or if mentioning Global Warming tangentially set the person’s teeth grinding.
    The good Justice is free to decide his own destiny. He knows the rigors of the job and whether he is equal to the work being done too standards. Do we recall or concern ourselves with which President nominated justices who have served long enough for Senior longest serving status. We care most about Justices searching for truth in established Law to guide just decisions.
    Politics’ pollution be damned as it rots like cancer the soul of this nation. Must political bigotry prevail in Congress. From those seated by the election process but believing the appointment should be for as long as they wish, serving as examples to the nation. Is it any mystery why people think and do. They see and hear things on their chosen media sources that convince. The average person does not bother with fact checks for truth, half-truth, or lie. If some lie based conspiracy theory seems remotely possible, then it bears believing and sharing. It’s nothing other than propaganda. Sadly, promulgating erroneous ideas (propaganda) has become pervasive and profitable in these days. Opinion posting abound, Unsubscribing from email lists can become a big time pain. And, thoughtful persons wonder who, among all out there clambering for the public’s ear, is truthful, spot on, and not selling books or a cure all drug.
    Justice Beyer appears legit and honorable. Who knows, he could very well out live us both
    If you still have any connections to Hope College, you should stay in contact.

    • larry Horist

      You are spot on. When I wrote that Breyer is pressure, that is exactly what I meant. He is outside the political battle He cannot be offered anything. He does not depend on party support to stay in office. The media cannot brow beat him. That is true of all of the justices. There is only one way to get a justice out and that is impeachment. It has never happened and probably never will .. and never should. My old college professor argued that even a person of some moral weakness would rise to nobility by be away from temptation. The office elevates the person. I do not thing that theory has stood up in some cases in the past. I recall Abe Fortas resigning ahead of a possible impeachment.

      Having long experience in politics and public policy, I cannot say here was a sadder time. We are not only sharply divided, but we have lost our binding American culture. We have become what I feared most — a tribalized balkanized nation. E Pluribus Unum has lost its meaning as characteristic of our nation. Instead of a melting pot, we are a bucket of rocks — black, white, brown, yellow and red — always to maintain our competitive political turfs. The flag, the Anthem and our founders are looked up with contempt by too many. I know of so many friendship and family relationships that have be broken over politics.

      My course at Hope College was many years ago. Gads! Everything in my life was many years ago.

  5. Frank stetson

    I think Justin Bieber should be supreme as long as he can sing and dance like an angel.