The interview came as the Supreme Court prepared to wrap up its term and speculation built about a potential retirement by Samuel Alito in the run up to the midterm elections that could cost Republicans control of the Senate. <\/p>\n
The justices left the bench for the final time without any retirement announcement by Alito, a George W. Bush appointee who has served on the court since 2006.<\/p>\n
Breyer, who noted he was close to 83 when he opted to retire in 2022, said, \u201cThere are lots of things involved. There\u2019s your family, your children, your grandchildren, what are you going to do? There are all kinds of things involved.\u201d <\/p>\n
When asked if the occupant of the White House was a consideration in his decision, Breyer, appointed to the court by Democratic President Bill Clinton in 1994, said, \u201cthat could be in my mind.\u201d <\/p>\n
Asked if it was likely, Breyer said, \u201cI don\u2019t know\u201d and noting his wife is a psychologist, added, \u201cShe\u2019s the one to ask.\u201d <\/p>\n
Breyer retired under President Joe Biden, a Democrat who chose his former clerk, Ketanji Brown Jackson as his successor. Breyer had faced progressive pressure to make way for a Democratic-appointed successor, including a billboard truck hired by Demand Justice to circle the Supreme Court in 2021.<\/p>\n
Thurgood Marshall, an appointee of Lyndon Johnson who retired from the court in 1991, was the last justice to step down during the tenure of a president with whom they were not ideologically aligned. Republican President George H. W. Bush picked Clarence Thomas to replace him.<\/p>\n
Declining Trust in the Court<\/p>\n
Public trust in the judiciary has fallen to near its lowest level in the half-century Gallup has measured it, and a majority of Americans now tell pollsters they believe the justices are guided more by politics than by law \u2014 a share that has roughly doubled in six years.<\/p>\n
Breyer conceded the decline was cause for concern, but he rejected the idea that the erosion reflects a Court actually driven by politics, arguing the perception confuses the appointment of a justice with the work of one. <\/p>\n
\u201cIt\u2019s politics when you\u2019re appointing a new justice; every political group in the world\u201d campaigns for their preferred nominee, he said. \u201cBut once the judge is appointed, it\u2019s different. The judge is thinking, what is the correct decision according to the law?\u201d<\/p>\n
Whether a loss of public trust is itself a threat, he said, depends on the time horizon. \u201cYes and no,\u201d Breyer answered, when asked if the Court\u2019s power ultimately rests on the perception of the public. \u201cYes, if you\u2019re talking very long run.\u201d <\/p>\n
A single unpopular decision, he said, would not move the country away from the rule of law; that takes time. The greater danger, Breyer said, is disengagement \u2014 that if Americans conclude the Court is nothing but politics and they stop paying attention, \u201cwhat you will do is you will divorce the court from the life of the average person.\u201d<\/p>\n
Bench Dissents<\/p>\n
At the end of a term which ended with two dissents from the bench by liberal justice Sonia Sotomayor \u2014 one of which prompted a sharp reply from Alito \u2014 Breyer reflected on his own such experience in a landmark affirmative action decision. <\/p>\n
\u201cI was thinking, well, if we\u2019re going to decide this case by bumper stickers, I have some too,\u201d Breyer said. \u201cAnd so I said, well, rarely in the law have so few, so quickly, changed so much. And I went on for about 20 minutes. So it was obvious I was pretty unhappy about that. And afterwards I thought, well, maybe I shouldn\u2019t have showed so much emotion.\u201d <\/p>\n
Breyer said he wished the public \u2014 and the press \u2014 paid more attention to the cases where the justices are unanimous than the more closely divided cases that dominate headlines. <\/p>\n
Is the public \u201cmore interested in abortion than they are in Java language? Yes, I do. I do think they\u2019re more interested,\u201d Breyer said. \u201cAnd so of course you\u2019ll print that and of course, but that\u2019s not the most, well, maybe that one is, I think that one\u2019s pretty important. But a lot of these five or six three, a lot of those cases are less important than a lot of the ones you don\u2019t write about.\u201d<\/p>\n
As the US prepares to celebrate its 250th birthday, Breyer said he remains optimistic about the country\u2019s future based on his talks with middle school students. <\/p>\n
\u201cWhat\u2019s the look in their eye? I interpret that look as something I like. I interpret that look as well,\u201d Breyer said. \u201cThey are interested. And therefore there is a reason for being optimistic, even though people in this country do not always agree with each other.\u201d<\/p>\n
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