Retirement watch for Justice Breyer should begin again next spring, says Mason expert

Ilya Somin

While U.S. Supreme Court Justice Stephen Breyer is unlikely to retire this year, he will probably be seriously considering doing so next spring, said Ilya Somin, professor of law at George Mason University’s Antonin Scalia Law School.

Had Breyer intended to retire anytime soon, he would have likely made a retirement announcement before or around the end of the Supreme Court’s spring term, said Somin.

“We are past the time when historically justices who are going to retire have announced their retirement,” said Somin. “Unless he has some sort of serious health issue or other unexpected event that requires him to retire earlier than he wanted, Justice Breyer is staying on the Supreme Court until at least next year.”

Breyer’s impending retirement was the subject of speculation among Supreme Court observers this year. Breyer, who turns 83 on Aug. 15, has thus far ignored calls by Democrats for his resignation and has hired his law clerks for the fall term, an indication he plans to stay on the court for the near future.

However, said Somin, Breyer is likely to reexamine his intention to stay on the Supreme Court at the end of the 2022 spring term.

“I think Justice Breyer is highly likely to retire next year, especially if he thinks that there are going to be close elections for the Senate that November,” said Somin. “Democrats only have the Senate by a slim majority, and that could change in 2022. If Justice Breyer announces his retirement next spring, that gives President Biden more than enough time to announce a replacement and get someone through the Senate before the November election.”

Somin said that, as an octogenarian, Breyer is likely aware that if he waits too long, he could be replaced by a conservative justice, as happened when Justice Ruth Bader Ginsburg died in 2020.

Somin added that Democrats will likely increase their pressure on Breyer to retire by next spring.

“It’s not that Democrats dislike Justice Breyer,” said Somin. “They respect him, but they would rather be assured of having a much younger person with similar views to replace him.”

Somin’s research focuses on constitutional law, property law, democratic theory, federalism, and migration rights. He is the author of “Free to Move: Foot Voting, Migration, and Political Freedom," "Democracy and Political Ignorance: Why Smaller Government Is Smarter” and "The Grasping Hand: Kelo v. City of New London and the Limits of Eminent Domain." His work has appeared in numerous scholarly journals, including the Yale Law Journal, Stanford Law Review, Northwestern University Law Review and others. Somin has also published articles in a variety of popular press outlets, including the Wall Street Journal and the Los Angeles Times.

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