'He didn't want to die on the bench': Justice Breyer's brother speaks on his decision to retire

After serving nearly 30 years on the nation's highest court, the Bay Area native has decided it's time to step down

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Thursday, January 27, 2022
Justice Stephen Breyer's 'pragmatism' behind decision to retire
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After serving nearly 30 years on the nation's highest court, Justice Stephen Breyer, the court's oldest member, has decided its time to step down.

SAN FRANCISCO (KGO) -- After serving nearly 30 years on the nation's highest court, Justice Stephen Breyer, the court's oldest member, has decided it's time to step down.

For years, the 83-year-old San Francisco native has been known as the court's ultimate pragmatist. And his brother, Judge Charles Breyer, told ABC7 News that it's that pragmatic thinking that led him to make this difficult decision.

"He didn't want to die on the bench," Judge Breyer, who is the U.S. District judge for the Northern District of California, told ABC7 News. "I don't think he looked at it that he had to stay until the last moment...he thought, I think, that for the good of the institution, which is really his concern, that this is an appropriate time to create a vacancy."

Breyer was nominated to the Supreme Court in 1994 by then-President Bill Clinton. In recent years, as the balance of the court tipped to the right, Breyer, who is considered a moderate liberal, faced growing pressure to step down.

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"There's a keen, really urgent awareness among the political left that they will lose the opportunity to shape the Supreme Court for the next generation, really, if they're not able to take advantage of every retirement possible," San Jose State University political science professor Donna Crane explained.

"The window of opportunity for Democrats to name a successor could close if they lose the midterms in November," she added.

In an interview on Wednesday, Judge Breyer, who lives in the Bay Area, acknowledged the political pressures put on his brother.

"He fully understands that politics plays a role in all of this," Judge Charles Breyer said. "It played a role in his appointment. He was appointed by President Clinton. Would 'President X' have appointed him? I don't know. Maybe, maybe not, probably not."

"And by the way, that is his philosophy," he added. "Not that it's political-- that it's pragmatic. And part of pragmatism, of course, includes the political aspects of it."

Justice Breyer was born in San Francisco in 1938. He became an Eagle Scout, and graduated from Lowell High School in 1955, where he was on the forensics team. At his 1994 confirmation hearing, Breyer said his upbringing helped shape his career in law.

He went on to Stanford University, Harvard Law, and the rest is history.

Asked about his brother's approach to the law, Judge Breyer said, "extreme pragmatism."

"That is, if we decided something this way, what does it mean? What is the meaning of the decision?...How will it affect real people?" he said.

Charles Breyer said he is most proud of his brother's dissenting opinions on the Supreme Court ("It takes courage and it takes principle to set out in writing why you disagree with something," he explained). And, on a personal level, his work on the U.S. Sentencing Commission in 1984, where he developed a set of sentencing guidelines still used today.

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"There are criticisms of the guidelines," he said. "But it has brought an order to sentencing, and it has attempted to eliminate disparities, and it has always tried to promote fairness -- not always succeeded -- but I'm proud of that because it is an important aspect of what we do as judges."

Judge Breyer said he expects after his retirement Justice Breyer will move from Washington, D.C. to Cambridge, Massachusetts.

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He said his decision to step down is bittersweet.

"We have mixed emotions," Judge Breyer said. "My brother is leaving a job that he absolutely loves." But, he said, it's the right time.

"He is not a person who is impulsive. He is a person who is simply far more reflective," Judge Breyer added. "And I think this decision on his part is a result of refection."