Supreme Court Justice Stephen Breyer turns 83 amid calls for him to retire before 2022 midterms

Three Supreme Court justices were confirmed to the bench under former president Donald Trump

Justice Stephen Breyer of the US Supreme Court turned 83 on Sunday, raising anew questions from liberals regarding whether his successor will be chosen by President Joe Biden or potentially a Republican in the future.

The prospect of Mr Breyer’s seat being yet another opportunity for Republicans to cement conservative control over the nation’s highest court is alarming Democrats. Some have warned that the court is headed for a repeat of the circumstances resulting from the death of Justice Ruth Bader Ginsburg, who like Mr Breyer were typically in line with the court’s liberal wing.

In a July interview with CNN, the court’s oldest liberal justice said that he had not decided if or when he would retire, while hinting that the makeup of the court would be on his mind, giving two factors for his potential decision to reporters: “[p]rimarily, of course, health [...] second, the court.”

Justice Ginsburg’s death in 2020 was a massive blow to Democrats as it left a third Supreme Court seat to be filled by former President Donald Trump with the help of now-Senate Minority Leader Mitch McConnell. Many questioned why the liberal justice had not retired during the second term of former President Barack Obama’s administration.

Both the recent history of the court’s conservative shift under the Trump administration as well as the indication of Mr Breyer that he will not step down any time soon has led many progressive Democrats, particularly during the 2020 election cycle, to call for the expansion of the Supreme Court to reverse that rightward tilt.

Six of the court’s nine justices, including Chief Justice John Roberts, are considered to typically side with conservative interpretations of the constitution and laws. There are exceptions, of course, such as Mr Roberts’ notable defections in cases that determined the fate of the Affordable Care Act, better known as Obamacare.

President Joe Biden roundly rejected those calls to expand the court during the election campaign, but acquiesced to the creation of a presidential commission in April with the purpose of researching potential reforms to the Supreme Court including court packing.

Republicans are uniformly opposed to efforts by progressives to expand the court, and have launched ads in recent months targeting swing districts denouncing the idea.

In April, several House Democrats including the chair of the House Judiciary Committee unveiled a bill that would expand the court from nine seats to 13.

“Nine justices may have made sense in the nineteenth century when there were only nine circuits, and many of our most important federal laws—covering everything from civil rights, to antitrust, the internet, financial regulation, health care, immigration, and white collar crime—simply did not exist, and did not require adjudication by the Supreme Court,” said Rep Jerry Nadler, the top Democrat on the Judiciary panel, at the time.

“But the logic behind having only nine justices is much weaker today, when there are 13 circuits. Thirteen justices for thirteen circuits is a sensible progression”, he added.