Liberal Justice Stephen Breyer, at 82 the oldest member of the U.S. Supreme Court, said he has not decided whether to retire, telling CNN in an interview published on Thursday his health and the court’s future are the main factors he is weighing.
Some liberal activists have urged Breyer to retire soon so President Joe Biden can appoint a younger successor who could serve for decades in the lifetime post. Biden’s fellow Democrats narrowly control the U.S. Senate, which has confirmation power for nominees to the federal judiciary.
Asked if he has decided whether to step down, Breyer told CNN in the interview conducted on Wednesday, “No.”
Breyer, speaking from his summer retreat in Plainfield, New Hampshire, cited two top considerations.
“Primarily, of course, health,” Breyer said. “Second, the court.”
Breyer, who has served as a justice since 1994 and will turn 83 in August, has remained mum about his plans since the court finished its latest nine-month term this month. He said in an April speech it is important for justices not to appear driven by political considerations. The court’s next term opens in October.
Republicans are seeking to regain control of the Senate in the 2022 congressional elections.
Conservatives hold a 6-3 majority on the court after Biden’s Republican predecessor Donald Trump appointed three members in his four years in office, including naming conservative Justice Amy Coney Barrett to the court after the death last September of liberal Justice Ruth Bader Ginsburg.
If Biden gets the chance to name Breyer’s successor, it would not change the court’s ideological balance. Biden has pledged to nominate a Black woman to fill any Supreme Court vacancy, a historic first.
During the court’s most recent term, Breyer authored a June 17 ruling rejecting a Republican bid to invalidate the Obamacare healthcare law as well as a June 23 ruling in a major free speech case involving a high school cheerleader.
Some Democrats are worried that if Breyer does not retire while the Democrats control the Senate, Republicans could block confirmation of his successor or a future Republican president could name his replacement and shift the court even further to the right.
Senate Republican Leader Mitch McConnell has said he would aim to block any Biden nominee in 2024, and could raise issues if a Supreme Court vacancy opened in 2023, saying last month: “Well, we’d have to wait and see what happens.”