Looks like the pressure might have gotten through to Stephen Breyer after all. Time to park the truck outside his residence?

Here's a photo of Demand Justice's billboard truck outside of Union Station. pic.twitter.com/2N1Md9WSiV

— Jennifer Bendery (@jbendery) April 9, 2021

Shortly after this stunt, Breyer hired a full complement of clerks for the next term, signaling that he wasn’t going to get pushed out of his job. The term ended a couple of months later, a time when justices would normally announce retirements, and that passed with conspicuous silence from Breyer. It served as a quiet act of defiance to the progressives demanding that Breyer learn a lesson from Ruth Bader Ginsburg’s passing.

Now, however, Justice Breyer wants people to know that the RBG experience does have him thinking about an exit strategy. In an interview with the New York Times, Breyer says that the question of his replacement has become a major factor in his plans for the future, but says that he learned that lesson not from Bader Ginsburg but one of her close friends:

Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

Scalia almost didn’t get his wish. It took an extraordinary effort from Mitch McConnell to hold that seat open, which probably wouldn’t have been necessary a generation earlier. The judiciary wars launched by Chuck Schumer, Harry Reid, and to some extent Joe Biden produced the sequence of events by which appellate and Supreme Court confirmations became the most highly prized spoils of elections. Bader Ginsburg didn’t let that inform her desire to continue working, but at least to the people who idolized her, it backfired in the end.

That’s been the message to Breyer for the entire year from the same progressives — let Biden pick your successor. And Breyer cited another conservative justice to argue that this consideration is indeed legitimate, even if it’s not the overriding priority in planning for retirement:

He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”

That sounded correct to Justice Breyer. “That’s true,” he said.

All of this sounds like Breyer might only be coming back for a victory lap in October. After all, if these are the calculations Breyer is making (and it sounds that way), then he knows full well that any nominee will need to get through a Senate controlled by Democrats. Thanks to the catastrophe in Afghanistan, the botched “mission accomplished” on COVID-19, and inflation eating away at Americans’ pocketbooks, that looks a lot less likely in 2023 than it did in April when the “Breyer Retire” campaign started. That would mean an announcement no later than June of next year, with confirmation hearings starting in September for the nominee. And, with the Senate balanced on a knife’s edge, it probably means a relatively moderate choice for the bench rather than a radical, although certainly more progressive than Biden will be able to nominate in 2023 if things keep going this way.

Aaron Blake’s correct in that Breyer has made the retirement watch a wee bit more interesting. And it was already heading in that direction anyway:

It also doesn’t mean Breyer is retiring soon or even leaning in that direction. But for a man whose book is all about an apolitical court and whose publisher said he wouldn’t talk about that subject, he sure gave the political world something to work with on that subject.

And this question remains one of the most important in Washington. Not only do Democrats have the slimmest of Senate majorities that could be gone after the 2022 election, but it conceivably might not even last until then.

It only takes one vacancy to change control, and there are often vacancies in the Senate, because of death, resignation or scandal. And 14 of the 50 Democratic senators come from states where a Republican governor could replace them or there would be an unpredictable special election with no assurances of a Democratic replacement. Half of the 14 are at least 70 years old.

That could rise to 15 if California Gov. Gavin Newsom (D) is recalled, potentially leaving a Republican governor to lead a state featuring the oldest senator, 88-year-old Dianne Feinstein. And Senate Minority Leader Mitch McConnell (R-Ky.) has made no secret he’ll continue to use all the bare-knuckle tools at his disposal to continue guiding the court to the right.

After this interview, I’d guess that not only will Breyer announce his retirement at the end of this next term, he’ll be looking at the appellate circuit for former clerks who might be worth recommending to Biden as his replacement. Anthony Kennedy appears to have engineered that feat pretty well, and that can’t have escaped Breyer’s notice either.