Progressives Hope Justice Stephen Breyer Steps Down They want President Biden to appoint a young liberal to replace the 82-year-old justice. But Breyer has publicly shown no indication of whether he will stay or go.

Progressives Are Hoping That Justice Stephen Breyer Steps Down At The End Of The Term

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NOEL KING, HOST:

Tomorrow is the last day of the Supreme Court's current term, and progressive activists are hoping it comes along with news of a retirement. They've been pushing for Stephen Breyer, the oldest justice on the court, to step down. They want President Biden to be able to appoint a younger liberal while Democrats control the Senate. Here's NPR congressional correspondent Susan Davis.

SUSAN DAVIS, BYLINE: For Erwin Chemerinsky, this is a familiar feeling. Seven years ago, the dean of the University of California Berkeley School of Law called for then-Justice Ruth Bader Ginsburg to retire because he reasoned too much was at stake in the 2016 election. Ginsburg didn't listen then, but Chemerinsky is hoping Justice Stephen Breyer will listen now.

ERWIN CHEMERINSKY: If he wants someone with his values and views to take his place, now is the time to step down.

DAVIS: Chemerinsky is part of a group of progressives who are breaking with the polite norms of the past when it comes to questioning how long a justice should serve. Ginsburg's death last year and the subsequent appointment of Amy Coney Barrett to deliver a conservative supermajority had a lot to do with that, says Brian Fallon, executive director of the liberal judicial advocacy group Demand Justice.

BRIAN FALLON: I think a lot of people that thought that silence was the best approach in 2013 came to regret that in the aftermath of her untimely passing last year.

DAVIS: Since Democrats took control of the Senate in January, Demand Justice has organized public demonstrations, billboard and ad campaigns and assembled a list of scholars and activists to join their public pressure campaign for Breyer to retire. The risk of Breyer remaining on the court, as Fallon sees it, is twofold. The first is a 50-50 Senate.

FALLON: Democrats are one heartbeat away from having control switch in the Senate, and there's a lot of octogenarian senators.

DAVIS: The second is the 2022 midterms when Republicans could win control of the Senate, and Kentucky Senator Mitch McConnell could become majority leader again.

FALLON: At worst, he might block any Biden pick. And at best, Biden is going to have to calibrate who he selects in order to get them through a Republican-held Senate.

DAVIS: Chemerinsky and Fallon concede this campaign is not without risk of blowback from Breyer.

CHEMERINSKY: I've certainly heard from some that this might make him less likely to retire, perhaps to dig in his heels.

DAVIS: The campaign also has not caught fire on Capitol Hill, where only a small handful of progressive senators have tactfully suggested they'd like to see Breyer retire of his own accord. Democratic Senator Jeff Merkley of Oregon told CNN earlier this month that he opposed any pressure campaigns on the court, but added this.

JEFF MERKLEY: My secret heart is that some members, particularly the 82-year-old Stephen Breyer, will maybe have that thought on his own, that he should not let his seat be subject to a potential theft.

DAVIS: Senate Judiciary Chairman Dick Durbin, who would play a lead role in filling any vacancy, also distanced himself from the retirement push.

DICK DURBIN: He alone can make the decision about his future, and I trust he'll make the right one.

DAVIS: Absent any changes, Democrats will control the Senate at least until January 2023. But if the court session comes and goes without a retirement announcement, Fallon expects the calls for Breyer to step aside to grow louder. It's all part of what he says is a new, more aggressive positioning on the Supreme Court coming from the left.

FALLON: Progressives for too long have taken a hands-off approach to the court, and they've been sort of foolish for doing so because the other side doesn't operate that way.

DAVIS: Breyer will turn 83 in August.

Susan Davis, NPR News, Washington.

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