Progressives Are Hoping That Justice Stephen Breyer Steps Down At The End Of The Term

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.

Article continues after sponsor message

"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.