Stephen Breyer's Retirement Won't Save Us From Supreme Court Insanity

Supreme Court Justice Stephen Breyer is retiring, and his replacement will likely shape U.S. political life for decades.

Right now, all eyes are on Judge Ketanji Brown Jackson, a federal judge serving on the D.C. Circuit Court of Appeals. The Senate has already confirmed Jackson twice: once in 2013, when she became a federal trial-court judge, and then again in 2021, when she was elevated to the federal appeals court. Her most recent confirmation vote was bipartisan, with Republican Sens. Lindsey Graham, Susan Collins, and Lisa Murkowski voting along with all Democrats to support her. So, even though there will undoubtedly be a partisan battle ahead, with the Democrats still controlling the Senate, all bets are on this being a successful nomination.

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That would be a huge victory for President Biden for two reasons. First, he will now have the opportunity to fulfill his campaign pledge of putting the first Black woman on the Supreme Court. There have been two Black justices so far, both men. And there have been five women on the court so far, with Justice Sonia Sotomayor, a Latina, being the only woman of color. Biden used very strong language on the campaign trail about this promise, saying that “it’s required they have representation. It’s long overdue.” White House Press Secretary Jen Psaki said on Wednesday that Biden intends to keep that commitment.

Second, replacing Breyer with a much younger justice will help protect against further conservative domination of the Supreme Court. The fear that led most Democrats to pressure and even lambast Breyer over the past year was of repeating Justice Ruth Bader Ginsburg’s fate. Ginsburg was pressured to retire earlier so that President Obama could replace her. However, she refused, hoping to outlast the Trump presidency.

That didn’t happen. She passed away a month and a half before the 2020 election. President Trump rushed to replace her and did so with the help of the Mitch McConnell-controlled Senate. In replacing Ginsburg with Justice Amy Coney Barrett, Trump was able to shift a guaranteed liberal vote on the court (Ginsburg) to a solid conservative vote (Barrett) that could be on the court for another four decades. The long-term repercussions of this drastic ideological shift are hard to understate.

The fear with Breyer was that the same thing might happen. Breyer is 83 years old. By all accounts, he’s in good health, but all bodies eventually break down, and many do so without notice, especially at that age. Pressure mounted on Breyer to retire in the first two years of Biden’s presidency so that a Democrat could nominate his successor and a Democratic Senate could confirm that nominee.

If Breyer waited, even if he waited just another year, it would be very possible that Republicans control the Senate again, giving Mitch McConnell the opportunity to, like he did with President Obama’s nomination of Merrick Garland to replace Justice Antonin Scalia in 2016, ignore any Biden nomination, hoping that a Republican would win in 2024 and have the opportunity to replace Breyer with a conservative. There is obviously no guarantee that’s what McConnell would have done, but he is ruthless, particularly around judicial nominations. Expecting him to help Biden appoint a liberal to replace Breyer would have been nonsense.

With Breyer announcing his retirement now, he all but guarantees that Biden will be able to place a liberal on the court. While Sens. Joe Manchin and Krysten Senema have thrown cold water on a lot of Biden’s domestic agenda, they have so far been loyal foot soldiers in his efforts to appoint judges to the federal bench. Certainly that could change with a Supreme Court nominee, but that’s unlikely. Biden will face Republican opposition, but barring any bombshell, he will ultimately get his pick through the Senate.

Diversifying the court with a younger justice will be a huge win for Biden (and, boy, does he need a win right now). But expecting that new justice to change any outcomes on the current conservative-dominated Supreme Court would be wrong. The current court has a 6-3 conservative majority. Breyer is in the three-member liberal wing, and by many measures he is the most moderate of the three liberals. So, Biden’s appointment of a young liberal could shift the liberal bloc to the left, especially on issues that Breyer has agreed with the conservatives in the past, such as religious freedom. And the fact that the new justice will likely be 30 or 40 years younger than Justice Breyer means that she will have opportunities in the future to influence the court in ways Breyer would not.

However, this new appointment won’t change the basic math that six beats three. On the hot-button issues of the day, from abortion to guns, from affirmative action to vaccine mandates, from criminal justice to the administrative state, replacing Breyer with another liberal, even a younger more progressive one, will change very few (if any) outcomes. The conservatives will still have more votes than the liberals on the court, and today’s announcement won’t change that calculus one bit.

That change won’t happen until two conservative justices leave the court during a Democratic presidency. With all of the current conservative justices younger than 75, that significant shift is a long way in the future … if it even happens at all.

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