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Has Justice Stephen Breyer decided when he will retire? 'No', he says, frustrating progressives

Erin Schaff-Pool/Getty Images

Supreme Court Justice Stephen Breyer says he has not decided when he will retire from the bench, telling a CNN reporter Wednesday what factors he might consider in making his decision but refusing to discuss his plans directly.

In an interview with CNN's Joan Biskupic, the 82-year-old justice, who will be 83 in August, said "primarily, of course, health" would influence his decision about retiring, and so would "the court."

These are the first public comments from Breyer on the question of his potential retirement. They will no doubt come as a bitter disappointment to the progressive left, who fear that if he does not step aside before the 2022 midterm elections, Republicans could win control of the U.S. Senate and refuse to confirm any Supreme Court nominees President Joe Biden might put forward to fill a vacancy.

Democrats have bluntly called on Breyer to retire in recent months, but after serving on the court for 27 years, Breyer only now finds himself as the senior liberal justice since Ruth Bader Ginsburg died last year. The pressure began after Republicans confirmed Justice Amy Coney Barrett to the court, and while the supposed 6-3 "conservative majority" has actually failed to fundamentally alter the dynamics of the court's decisions, progressives are nevertheless furious that Breyer won't step aside.

Asked directly if he has decided when he will step down, Breyer replied with a curt, "no."

He indicated that his seniority "has made a difference to me."

"It is not a fight. It is not sarcasm," Breyer said of the court's private conferences. "It is deliberation."

Discussing the interview with Breyer on CNN"s "New Day", Biskupic's takeaway was "he's not going anywhere just now."

"He didn't say that explicitly, but that was certainly between the lines," she said. "He hadn't wanted to speak about this, but I went up there and he was willing to give me some material to at least know what we can expect in the near future, but I think your reading between the lines is exactly what mine is: not for a while."

Liberal activists were not pleased with Breyer's answers.

"Especially after Justice Ruth Ginsburg lost her bet on her own longevity, with the rest of us forced to pay, it's astonishing that Justice Stephen Breyer would court the same risk," Yale Law professor Samuel Moyn told CNN. Moyn was one of several academics who signed a letter calling on Breyer to retire.

"It's not a good look," said University of Houston Law Associate Professor Daniel Morales, another signatory.

Senate Democrats also weighed in.

"I'm very concerned about the sustainable liberal wing of the party," said Sen. Richard Blumenthal (D-Conn.), who serves on the Senate Judiciary Committee. "And I'm very concerned about the court right now because it seems to have a very rightward tilt, and we need balance, which Justice Breyer provides."

Most emphasized that it was solely Breyer's decision on when he should retire, refraining from outright saying the justice should go.

"It's his decision and his alone," said Senate Judiciary Committee Chairman Dick Durbin (D-Ill.).

Democrats likely do not want to give the appearance of politicizing the court by calling for Breyer's retirement. An overt call for Breyer to step down would in all probability backfire, as Breyer has maintained a personal commitment to fighting partisanship on the bench.

"My experience of more than 30 years as a judge has shown me that once men and women take the judicial oath, they take the oath to heart," Breyer told a group of Harvard Law students in April. "They are loyal to the rule of law, not to the political party that helped to secure their appointment."

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