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As court’s term ends, liberals wait, hope Breyer will step down soon

Justice Stephen G. Breyer, 82, has long written about the need for the Supreme Court to be apolitical.Steven Senne/Associated Press

The Supreme Court released its final decisions of the term on Thursday with no word from Justice Stephen G. Breyer on whether he would retire from the bench.

Liberals who hoped to hear the 82-year-old justice would step down now and allow President Biden to nominate a replacement while Democrats still hold narrow control of the Senate were instead dealt the blow of two 6-3 opinions on voting rights and campaign finance authored by the court’s conservative wing.

The decisions were a vivid display of the power conservatives wield on the nation’s highest court, with the voting rights ruling in particular derided in a stinging dissent by Justice Elena Kagan as a “tragic” erosion of the Voting Rights Act.


Breyer could still announce his retirement in the coming days, but his silence on Thursday heightened fears among some advocates that the liberal jurist, who has repeatedly said political considerations will not influence his retirement plans, does not plan to go anywhere yet.

With only 50 Democratic senators holding a majority, Senate minority leader Mitch McConnell could block Biden from replacing Breyer if just one member of the caucus broke ranks, fell ill, or died, raising the prospect that the court’s six-seat conservative majority could get even larger in the future.

Some progressives responded to the news by renewing calls to expand the Supreme Court, a sweeping move that most Senate Democrats and Biden have not endorsed.

“I respect Justice Breyer deeply and professional trajectory is a personal matter — and it’s time for him to go,” said Aaron Belkin at Take Back the Court, a group that advocates for adding seats to the court. “But even if he goes, Breyer retiring will not fix the court. Even if Breyer retires, we will still have a 6-3 majority court that will threaten the country.”


Not all Supreme Court retirements have come by the term’s final decision day, and some progressives said they are still holding out hope that Breyer could announce his retirement on Friday, when the court officially goes into recess. In 2006, Justice Sandra Day O’Connor retired several days after the term’s final opinions were released. The vast majority of recent retirement announcements have come by the end of the term, according to an analysis by The Washington Post.

Some Democrats worry about a repeat of 2010, when Justice Ruth Bader Ginsburg resisted calls to step down while Democrats controlled the White House and both chambers of Congress. She died last September and was replaced by President Donald Trump-appointed conservative Amy Coney Barrett just days before Biden was elected president. Frustration among Democrats over Breyer escalated last month, as McConnell acknowledged he may not let Biden choose Breyer’s successor if Republicans win back the Senate next year.

Even if Breyer does not retire in the coming days, he could theoretically step down at any point while Democrats still control the Senate.

“It very well may be that [Breyer] will not retire until the next term. It very well may be that he will not retire in the next two years at all — we’ll see,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law and one of several liberal law professors who have urged Breyer to leave his seat. “To me, the most important thing is that he step down while Biden is in office and the Democrats are in control of the Senate.”


But the Democrats’ majority is fragile even before the 2022 midterms, which is why some progressive legal scholars and groups began pressuring Breyer to retire this term.

A former law professor, prosecutor, and federal judge in Boston who served as as chief counsel for the Senate Judiciary Committee under Senator Edward M. Kennedy, Breyer has long written on the preservation of democracy and the need to keep the court apolitical.

Biden, who has pledged to appoint a Black woman to the Supreme Court should he get a vacancy, has declined to persuade him to retire, following the approach former President Barack Obama took with Ginsburg.

“We leave that decision for Justice Breyer to make,” press secretary Jen Psaki said this week.

The uncertainty over the makeup of the bench comes as the court on Thursday struck down a California policy requiring nonprofits to report their donors to the state in an effort to rein in political contributions from “dark money” groups, and upheld Arizona voting restrictions that a lower court had previously found to disproportionately harm Black, Latino, and Native American voters.

Republicans, who have been fueling baseless allegations that the 2020 election was fraudulent as part of their efforts to impose voting restrictions in many states, cheered the decision as a step toward making elections “safe and secure.”

“Today’s ruling confirms that states are best positioned to make their own election laws to protect against Democrats’ efforts to subvert the Democratic process,” said Tom Emmer, chairman of the National Republican Congressional Committee.


But Biden blasted the Arizona decision for undercutting the landmark Voting Rights Act, and liberal and progressive groups saw the 6-3 opinions Thursday as part of a larger slate of rulings that have curbed civil rights and LGBTQ rights and could have dire implications for future elections.

“These two decisions prove what we have been saying for years, which is the Republican justices on the Supreme Court — especially when it comes to cases involving democracy — they consistently rule in partisan interests,” said Christopher Kang, chief counsel for Demand Justice, a progressive advocacy group that on Thursday unveiled an ad campaign to call for an expansion of the number of justices on the court.

Massachusetts Senator Edward Markey, who introduced legislation to increase the number of justices from nine to 13, has refused to join in on the pressure campaign against Breyer. But on Thursday he eagerly echoed pleas to expand the Supreme Court.

“Today’s ruling is another blow to voting rights in America, on top of the tsunami of voter suppression laws moving in state legislatures across the country,” Markey said in a statement, calling on Democrats to not only pass far-reaching bills to protect voting rights but to also increase the number of justices. “If we fail to do so, it is a near-certainty that the court’s conservative majority will continue to rule in favor of the far-right interests of those that orchestrated the theft of these seats.”


Reach Jazmine Ulloa at jazmine.ulloa@globe.com or on Twitter: @jazmineulloa.