Who is Supreme Court Justice Stephen Breyer, and why does he matter?

The liberal left cannot afford to lose another of their three sympathetic justices – but the oldest one is, for now, going nowhere

Of all Donald Trump’s many legacies, one of the most enduring will be his impact on the US Supreme Court, to which he nominated three justices.

Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett are all ensconced for life terms alongside fellow conservatives Clarence Thomas, Samuel Alito and John Roberts, and their decisions are already making a huge impact – particularly on voting rights, where a decision earlier this summer (in Brnovich v Democratic National Committee) effectively gutted one of the key provisions of the Voting Rights Act, making it far easier to impose legislation that would deliberately make voting harder for particular racial groups.

Dissenting in that case were the court’s three liberal justices: Elena Kagan and Sonia Sotomayor, both appointed by Barack Obama, and Stephen Breyer, appointed by Bill Clinton. And as the Biden presidency unfolds, it’s the 82-year-old Mr Breyer who’s attracting the most attention – albeit not in the way he might want.

Democrats and progressives who idolised Ruth Bader Ginsburg are still harrowed by the aftermath of her death in 2020. For many of them, her memory will be forever tarnished by the fact she did not stand down during the Obama administration, at which point she was already advanced in years and seriously ill. And the implications of her departure have turned the screws on Mr Breyer, who joined the court not long after her in 1994.

Liberals have been calling for him to retire for some time, and their voices have only grown louder as the current Roberts-led court’s decisions veer sharply to the right. Mr Gorsuch, Mr Kavanaugh and Ms Barrett are all relatively young by Supreme Court standards – the latter only 49 – and while Ms Sotomayor and Ms Kagan are hardly aged, the prospect of at least three highly conservative justices lasting another generation gives Democrats an urgent imperative to shore up their own side for the coming decades.

Mr Breyer is a lower-profile justice than Ms Ginsburg or former swing voter Anthony Kennedy, and has never captured the public’s imagination, fascination or loathing in the ways some of his contemporaries have. He also has done little to chase it. Nonetheless, he is regarded by mainstream liberals as one of their own, ideologically speaking – at least as far as protecting basic rights is concerned.

But he is also not a firebrand or iconoclast, and has many times expressed a dear faith in the court as an institution. He has a new book on the way later this year that will apparently warn against any attempt to reform the court from the outside because of concerns about its ideological balance.

“Political intervention could itself further erode public trust,” the press release for the book reads. “Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.”

Mr Breyer’s judicial thought and views of the institution, however, have little bearing on the decision of when to retire, which remains up to him. He has so far signalled that he won’t be going at the end of the court’s next term – but as he told CNN, he has two criteria for deciding when to bow out: “Primarily, of course, health. Second, the court.”

A Supreme Court nomination may be a lifetime appointment, at least for now, but if he stepped down to give Joe Biden a clear run at a nomination, Breyer would hardly be the first justice to retire. In the last two decades, the court has seen three justices stand down: Sandra Day O’Connor (who served 24 years), David Souter (nearly 19 years) and Anthony Kennedy (30 years). Donald Trump had the chance to fill Mr Kennedy’s seat; he opted for Brett Kavanaugh, whose hearings were the most contentious since Anita Hill testified to the Senate against Clarence Thomas in 1991.

Mr Thomas, like Mr Kavanaugh, survived those hearings. He is now the court’s longest-serving justice, currently in his 30th year. A hardline conservative, he is also nine years younger than Mr Breyer, and there is little sign he is planning an imminent retirement. Given his views, he would be unlikely to step down under a Democratic president – especially while Democrats also hold the Senate.

While their chances of retaining the House are thought to be on a knife edge, the party has a favourable Senate map headed into 2022. For Mr Breyer to hold on until then is one thing, but for an 82-year-old justice to resist the pressure to retire with a Democratic president and Senate nearing the end of their term nearing its end will be even stronger than the pressure he’s under now.