WASHINGTON — Justice Stephen Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor.

“There are many things that go into a retirement decision,” he said.

He recalled approvingly something that Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Breyer said during a wide-ranging interview Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Joe Biden can name his successor.


The justice tried to sum up the factors that would go into his decision.

“There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

He paused, then added: “I don’t like making decisions about myself.”

The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.

The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.

In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.


“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Breyer made the point more broadly in his new book.

My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
— Justice Stephen Breyer, in his new book

“My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

That may suggest that judges ought not consider the political party of the president under whom they retire, but Breyer seemed to reject that position.

He was asked about a remark from Chief Justice William Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”


That sounded correct to Breyer.

“That’s true,” he said.

Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Trump lost his bid for reelection.

Liberals have pressed Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-3 conservative majority. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on justices.

Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.

“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”

Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law.

“Nobody really knows, but there’s a risk, and how big a risk do you want to take?” he said.


“Why do we care about the rule of law?” Breyer added. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.”

Term limits were another matter, he said.

“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.

Term limits would also have a silver lining for justices deciding when to retire, he added.

“It would make my life easier,” he said.

Breyer said the court should be deciding fewer emergency applications on its “shadow docket,” in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Biden’s eviction moratorium.

In both, the three liberal justices were in dissent.

Breyer said the court should take its foot off the gas.

“I can’t say never decide a shadow-docket thing,” he said. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”


Asked whether the court should supply reasoning when it makes such decisions, he said: “Correct. I agree with you. Correct.”

He was in a characteristically expansive mood but was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Breyer said. “I don’t think any member of the court is living in Pluto or something.”