By Jessie Seigel / Washington, D.C.
This year’s Supreme Court term is coming to an end soon. Some court watchers ardently wish Justice Stephen Breyer would make it his last.
In April, a billboard truck circled the Supreme Court building with the blunt message: “Breyer, retire. It’s time for a Black woman Supreme Court Justice. There’s no time to waste.” The liberal advocacy group, Demand Justice, which had employed the truck, also started an online petition that reads in part, “Tell Justice Breyer: Put the country first. Don’t risk your legacy to an uncertain political future. Retire now.” More recently, when asked by CNN whether she thought Breyer should retire, New York Rep. Alexandria Ocasio Cortez said she would have to give more thought to it, but that she was inclined to say yes.
Justice Breyer will turn 83 in August. But the push to persuade him to retire is not based in age discrimination. No one is arguing that Breyer is slowing down mentally or no longer capable of the adept reasoning required for the job. Nor is it, as the billboard trumpeted, mainly an effort to push him out in favor of a Black female justice. The concern is, rather, a practical one—fear that, while Breyer currently appears to be healthy, what happened with Justice Ruth Bader Ginsburg could happen again soon.
Ginsburg, in her early 80s and a cancer survivor, resisted retirement during the first two years of President Obama’s term when he could possibly have appointed her replacement. Justifying that choice, Ginsburg told Elle magazine in 2014, “If I resign any time this year, he could not successfully appoint anyone I would like to see on the Court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for [the Supreme Court]. So anybody who thinks that if I step down, Obama could appoint someone like me, they’re misguided.”
Although fighting repeated recurrences of cancer, Ginsburg continued on the Court until the Republicans regained a majority in the Senate and Donald Trump became president. She then tried to wait out the Trump administration, remaining on the Court and fighting the good fight in strong minority dissents, but died in September 2020 at 87 near the end of Trump’s term. This enabled Republicans to install the right-wing judge Amy Coney Barrett in Ginsburg’s place, just a week before Trump’s electoral defeat.
This third Trump Supreme Court appointment secured a six to three right-wing majority on the Court. Trump and Mitch McConnell had previously managed, using dubious maneuvers, to install Neil Gorsuch and Brett Kavanaugh as justices. All middle-aged, Gorsuch (53) Kavanaugh (56), and Barrett, (49) have a long period ahead in which to hold sway over how the interpretation of our laws is shaped.
Replacing Breyer now would not gain Democrats a majority on the Court, but it could prevent its movement in an even more rightward direction. It would also allow Biden to bolster the longevity of the liberal side of the court. Unlike Breyer, Justices Sonia Sotomayor and Elena Kagan are 66 and 60 years old, respectively.
President Biden has stated his desire to appoint the first Black female Supreme Court Justice. Among those said to be in the running are just-confimed U.S. Court of Appeals Judge for the D.C. Circuit Ketanji Brown Jackson (50), U.S. District Court Judge Michelle Childs (55), and Leondra Kurger (44), a justice on the California Supreme Court.
Because Republicans eliminated the application of the filibuster to Supreme Court justices in 2017, a simple Democratic majority could confirm anyone Biden nominates.
However, the Democrats only hold a Senate majority because of Vice President Harris’ power to break tie votes. If the Republicans take the Senate in 2022, McConnell will again be the Majority leader. And if Breyer should leave the Court by death or retirement after that, McConnell would likely refuse to even hold a hearing on any Biden nominee—repeating the performance in which he denied a hearing to Obama’s 2016 nominee, Merrick Garland. McConnell already declared on Monday that he would block anyone nominated in 2024 and, as to 2023, said:, "Well, we have to wait and see what happens."
The Democrats could lose the majority even sooner than 2022. If a Democratic senator from a state with a Republican governor must leave office for any reason, the Republican governor would likely appoint a Republican to fill the seat.
If Breyer retires now, confirmation of a new justice will still of course be subject to the unpredictable whims of Senator Joe Manchin, the nominal Democrat from West Virginia. Manchin has declared he will not vote for legislation unless the vote is bipartisan; that is, unless some Republicans join in the vote. It is not clear whether he would apply that to Supreme Court confirmations as well.
Given McConnell’s recent statements that he is “100 percent” focused on stopping Biden’s administration, and his past history doing exactly that to President Obama concerning Merrick Garland, Obama’s ill-fated Supreme Court nominee, it is unimaginable that there will be any Republican votes to confirm a Biden-nominated replacement for Breyer. McConnell already declared, on Monday, that he would block anyone nominated in 2024 and, as to 2023, said: "Well, we'd have to wait and see what happens."
But Breyer could cure the uncertainty of such confirmation process by making his retirement conditional on the confirmation of Biden’s nominee. Justice Sandra Day O’Connor did this in 2005, announcing her intention to retire effective upon the confirmation of a successor.
All this brings great urgency to the timing of a Breyer departure from the Supreme Court.
If Breyer cares about his liberal legacy and the possibility of rebuilding a liberal majority, he should retire in favor of a new, younger liberal justice now—while it is fairly certain one could be successfully confirmed.
But will he?
The President appears reluctant to broach the question with Breyer. White House Press Secretary Jen Psaki said in May that Biden believes retirement is a decision the Justice “will make when he decides it’s time to no longer serve on the Supreme Court.” Although past presidents have hinted at the subject with older justices, there seems to be a traditional hesitance to raise the issue directly.
Last October, during a session held by the Edward M. Kennedy Institute for the United States Senate, MSNBC’s Ari Melber asked Breyer whether “justices do or should think about who will replace them, and their retirement process while they are on the court.”
“Of course, from time to time you think about it,” Breyer replied. “It’s part of the aging process. It’s inevitable.” But he then referenced an alleged effort to keep the decision out of politics: “The more the political fray is hot and intense, the more we stay out of it.” Breyer added that the Court makes decisions for 330 million Americans, so the people on both sides have to have the confidence that the judge “is a fair person.”
Furthermore, in The Authority of the Court and the Peril of Politics, a book by Breyer that will be published this fall, the justice argues that though the current Court is more conservative than in the past, it is a mistake to think his colleagues are partisans. Breyer writes, “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
But the fiction that the Supreme Court is above politics has been a sophistic hypocrisy since at least 1803 when Chief Justice John Marshall used sleight of hand in Marbury v. Madison to claim for the courts the power to rule on the legality of actions taken by the other two branches (legislative and executive) of government. Any judge’s legal philosophy, by definition, carries within it a political point of view.
As for succession to the Court, what—if not politics—was involved in McConnell blocking any consideration of Garland’s nomination because it occurred eight months before the 2016 presidential election? What, if not cynical politics, was involved in McConnell later rushing through Barrett’s confirmation within one week of the 2020 presidential election?
Justice Anthony Kennedy not only timed his retirement to occur during the term of a Republican president, but had a hand in the appointments of Neil Gorsuch and Brett Kavanaugh, both of whom had formerly clerked for him. The Baltimore Sun reported in September 2020 that Trump’s first White House Counsel Donald McGahn II consulted with Kennedy on his replacement, recommending Gorsuch to take Antonin Scalia’s seat, and Kavanaugh to take Kennedy’s seat when he retired. Kennedy’s resulting retirement aided Trump and a Republican-controlled Senate in locking down his seat for the foreseeable future.
To ignore the effect of politics on decisions concerning the Court’s makeup is to lock oneself in an ivory tower away from real world effects—or pretend to. This seems an odd choice for Breyer, who has been described by Oyez as one who considers real world consequences in his legal reasoning on the Court.
If Justice Breyer chooses not to retire, no one can make him do so. He has a lifetime appointment. But to act like his choices regarding the Supreme Court—his appointment to it, his decisions made on it, and his retirement from it—are totally nonpolitical and that his decision about retiring should take no notice of the political needs or future of the country—especially at a moment in our history when democracy is fighting for its life—is intellectually dishonest.
Political columnist Jessie Seigel had a long career as a government attorney in which she honed her analytic skills. She has also twice received an Artist’s Fellowship from the Washington, D.C. Commission on the Arts and Humanities for her fiction, and has been a finalist for a number of literary awards. In addition, Seigel is an associate editor at the Potomac Review, a reviewer for The Washington Independent Review of Books, and a dabbler in political cartoons at Daily Kos. Of this balance in her work between the analytic and the imaginative, Seigel jokes, “I guess my right and left brains are well-balanced.” More on and from Seigel can be found at The Adventurous Writer, https://www.jessieseigel.com.