Retired Supreme Court Justice Stephen Breyer brushed off calls that Justice Sonia Sotomayor should step down from the bench, saying she is a “spring chicken.”
“I think anybody can say what he wants, you know. And I was 83 years old, just about I think, when I retired. But Justice Sotomayor is not, she is a spring chicken,” Breyer told Fox News host Shannon Bream on “Fox News Sunday.”
There have been calls in recent months, including in op-eds such as the one published in the Atlantic, that Sotomayor retire under the Biden administration. The recent push for the justice to resign comes ahead of the presidential election, with left-leaning pundits and academics arguing President Biden and the Democrat-controlled Senate could approve a candidate before the presidential election.
“I think there is a difference. She is a spring chicken and I’m an old rooster. There we are. But people can say what they want. The decision about what to do is up to the judge,” Breyer said.
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“You can stay there until you are 150 years old if you want,” he said of the lifetime appointment to the nation’s highest court. “But in my mind, at least there did come a time and I guess 83, 84, 85 – I don’t know exactly how many 80s you want in there – but it’s time for another person,” he said.
Sotomayor is 69 years old and has served on the court since 2009, when President Barack Obama appointed her to the position following the retirement of Justice David Souter at the age of 69. Sotomayor, who has Type 1 diabetes, is the oldest liberal-leaning Supreme Court justice, but younger than both Justice Samuel Alito, 74, and Justice Clarence Thomas, 75, who are both conservative.
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Liberal pundits argue that if Sotomayor does not retire under the Biden administration, Republicans could take control of the White House and Senate following the election, meaning Sotomayor would have to remain on the bench until Democrats resume control to ensure a liberal-leaning justice is nominated, or risk losing the seat to a new, younger conservative justice if presumed GOP nominee Donald Trump takes the White House.
Breyer also reflected on his friendship with the late Justice Antonin Scalia in his interview with “Fox News Sunday,” despite the two having wildly different legal opinions. The interview comes as Breyer touts his new book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” which is critical of conservative justices for their decision to overturn Roe v. Wade.
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Breyer is a pragmatist, meaning he views laws as being created by specific social contexts, while textualism interprets laws and the Constitution based on its “plain meaning,” not its intent, law definitions show.
Breyer said that years ago, he and Scalia, a conservative stalwart who identified as a textualist, visited students in Lubbock, Texas, at a football stadium where the two justices debated legal opinions while illustrating to students the pair were still close friends despite the ideological differences.
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“They’d never seen a Supreme Court judge, and we talked about it, and before you know it… it was clear to them, we liked each other. It was also clear we didn’t agree. So I said, ‘Look, this document, written more than 200 years ago, 1788, 1789.’ I’d say, ‘Look, hey, things have changed. The values don’t change. The freedom of speech stands for certain values, but what it’s applying to changes.’ So I say, you know, ‘Nino, George Washington did not know about the internet,'” he recounted.
“And Nino says, ‘I knew that,’” Breyer recounted of his debates with Scalia, whom he affectionately calls “Nino.” Scalia suddenly died of a heart attack in 2016 at the age of 79.
“So he says, ‘Stephen, the problem with your approach, looking at these different things is it’s too complicated. It’s too complicated. You’re the only one who can do it.’… But then I say to him, ‘If we follow your approach, we’ll have a Constitution that no one would want.’ And so there you have the essence of the argument,” he added.
