Progressive group ramps up pressure on Justice Breyer to retire

Demand Justice, an advocacy group led by a former top aide to Senate Majority Leader Charles Schumer (D-N.Y.), is pressing longtime liberal stalwart Justice Stephen Breyer to retire from the Supreme Court.

The group launched its effort Friday and wants Breyer, 82, to step down so that President Biden can appoint the first Black woman to serve on the Supreme Court while Democrats have control of the Senate.

“We are now firmly in the window when past justices have announced their retirement, so it’s officially worrisome that Justice Breyer has not said yet that he will step down. The only responsible choice for Justice Breyer is to immediately announce his retirement so President Biden can quickly nominate the first-ever Black woman Supreme Court justice,” said Brian Fallon, the executive director of Demand Justice and a former top aide to Schumer.

Ketanji Brown Jackson, a judge on the U.S. District Court for the District of Columbia appointed by former President Obama, is considered a top candidate to make history on the high court. Biden recently nominated her to fill Merrick Garland’s open seat on the D.C. Circuit Court of Appeals.

Demand Justice has hired a billboard truck to drive around the Supreme Court with the message: “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.”

The group also launched an online petition asking signatories to “Tell Justice Breyer: Put the country first. Don’t risk your legacy to an uncertain political future. Retire now.’”

Demand Justice noted that two other prominent liberal justices, former Justice David Souter and former Justice John Paul Stevens, announced their retirements during Obama’s first two years in office.

Souter was replaced by Justice Sonia Sotomayor, the first Latina to serve on the court. Stevens was replaced by Justice Elena Kagan.

Progressive activists are still feeling stung by the death of Justice Ruth Bader Ginsburg, one of the most influential liberal justices to serve on the court in recent decades. Her death in September opened the way for Senate Republicans to speedily confirm President Trump’s nominee, conservative judge Amy Coney Barrett, before the November presidential election. 

With the Senate now split 50-50 and the 2022 midterm elections fewer than 20 months away, activists on the left are nervous about the future of Breyer’s seat.

If Democrats lose their Senate majority next year, there’s no guarantee that Senate GOP Leader Mitch McConnell (Ky.) would hold a hearing on Biden’s nominee. McConnell famously denied Garland a hearing or a vote in 2016 after Obama nominated him.

“We cannot afford to risk Democrats losing control of the Senate before a Biden nominee can be confirmed. Justice Breyer is not entitled to the benefit of the doubt at this point. Those worried about the Court’s future should speak up to ensure he understands the need for him to time his retirement wisely,” Fallon said on Friday.

Democrats could also lose their Senate majority before the 2022 midterm if any member of their caucus from a state with a Republican governor leaves office unexpectedly. Governors typically pick someone from their own party to temporarily fill a vacant Senate seat until a special election can be held.