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In early April, the progressive group Demand Justice ordered a billboard truck to be driven around the Supreme Court building featuring the words “Breyer, retire.” The message was directed at 82-year-old Justice Stephen Breyer, one of three remaining Democratic appointees on a court that has become increasingly dominated by conservative justices in recent years.
Breyer was appointed to the Supreme Court by President Bill Clinton in 1994. During his time on the bench, Breyer has been a consistent defender of liberal priorities in cases involving abortion, marriage equality, voting rights and other issues. There’s growing urgency on the left, however, to see Breyer step down from the court so he can be replaced by another liberal justice while Democrats are the majority party in Washington.
Much of that anxiety is informed by recent history. Liberal icon Ruth Bader Ginsburg did not retire when Democrats controlled the Senate during the Obama administration, and she died from cancer at age 87 shortly before the 2020 presidential race. Republicans moved swiftly to fill her seat with Amy Coney Barrett, which cemented a 6-3 conservative majority on the court that legal experts say may soon undo many rulings that defined Ginsburg’s judicial career.
Supreme Court confirmations are decided by a simple majority in the Senate, meaning that currently, Democrats could approve a justice nomination with the thinnest of majorities if all 50 of them were in agreement. But if the GOP takes back control of the Senate in next year’s midterms, it could use its majority to block President Biden’s nominee from being confirmed in the hope that a Republican wins the presidency in 2024. That strategy paid off in 2016 when Republicans refused to hold hearings on Barack Obama’s nominee Merrick Garland, which allowed Donald Trump to fill the seat when he took office.
Why there’s debate
The risk of Breyer possibly being replaced by yet another conservative judge has led some progressives to publicly pressure him to retire. They argue that too much of the country’s future — and Breyer’s own legacy — is on the line for the decision to be left up to Breyer himself, especially in light of the justice’s repeated assertions that politics shouldn’t play a role in judicial decision making. Critics say Breyer’s view that the Supreme Court is insulated from partisanship ignores decades of Republican maneuvering that has created a federal judiciary that is significantly to the right of public opinion on a long list of issues.
Opposition to pressuring Breyer comes on two fronts. The first group, which includes Biden and most senior Democrats, disagrees on principle. They argue that Breyer should be allowed to make his own decisions about his future after serving the country for so many years. Some also say that viewing his tenure entirely through the lens of political gamesmanship only serves to further degrade the authority of the nation’s highest court in the eyes of the public.
Another group says public calls for Breyer to retire will only make him more likely to stay on the bench. A number of Supreme Court scholars say he is, above all, an institutionalist who believes deeply in the sanctity of the Supreme Court. They think Breyer will choose to retire soon so he can be replaced by a justice who will defend his legacy — but only if he’s given space for the decision to not be read as purely partisan.
All eyes will be on Breyer when the Supreme Court’s current term comes to a close at the end of this month. If he chooses to announce his retirement then, Democrats will have ample time to confirm his successor before the Senate potentially changes hands. Biden has pledged to nominate a black woman to the court if given the opportunity to fill a vacancy.
Staying on poses more risk to the legitimacy of the court than retiring does
“If Breyer is truly concerned about the Supreme Court's losing the trust and confidence of the people, what does he think a 7-2 conservative-led court, delivering partisan decision after partisan decision, out of step with public opinion, will look like to the average American? What confidence will it command? What credibility will it have?” — Mehdi Hasan, MSNBC
Breyer needs to accept that the court is already deeply political
“Until liberals can squarely face what the Supreme Court really is — a highly political, highly ideological, unelected super-legislature — they will continue to be steamrolled by conservative judicial activism, and they'll deserve it.” — Ryan Cooper, The Week
Retiring is the best way for Breyer to defend his legacy
“Breyer has seen first hand the corruption of this arbitrary process. He can reject Republican obstructionism and dominance of the Court by just simply going away and being replaced by a younger and potentially more diverse candidate, as Biden has promised to do.” — Manny Fidel, Business Insider
Democrats don’t have time to allow Breyer to wait for Breyer’s decision
“With the very real possibility that he could lose the Democrats’ Senate Majority next year — owing largely to those GOP voter suppression laws made possible by the Court — Biden has a limited opening to wrest back the balance of power on the Courts from the conservatives and give liberals a fighting chance for equal justice in the decades to come. It is Biden as much as Breyer whom history will judge in this moment of supreme political consequence.” — Juan Williams, The Hill
The issue will only get more politicized if he stays on
“If Justice Breyer fails to step down at the end of this term, it is likely to set off a wave of concern from people who are right now biting their tongue on the expectation he will do the right thing on his own. … The decision about whether or not to remain on the Court is not just about whether he likes his job. The decision concerns millions of Americans whose personal fates will be impacted by the future composition of the Court.” — Brian Fallon, executive director of Demand Justice, to HuffPost
Pressuring Breyer will backfire
“Justices don’t like to be pressured politically, and they generally don’t like law professors telling them what to do. A justice, like any other federal judge, would rather confess to grand larceny than to confess a political motivation.” — Judicial historian Christine Kexel Chabot to New York Times
Breyer has every reason to stay on the job
“Justice Breyer is still producing excellent work and has shown no signs of either ill health or mental decline. There is no reason for him to retire until he is unable to do his job. The longer he delays his retirement, the longer he spares a healing nation another vicious confirmation battle in an evenly divided Senate.” — Michael J. Broyde, CNN
Breyer likely doesn’t care what rank-and-file Democrats think
“Each justice feels that he or she can serve well and contribute and is fully cognizant of political concerns The move by progressive activists to retire Breyer will have no effect on his ultimate decision at best, with some likelihood that he stays longer to avoid the perception that he’s succumbing to political pressure.” — Supreme Court historian Ilya Shapiro to Washington Examiner
He will retire on his own if given space to do so gracefully
“He is the one of the great pragmatist justices ever to have sat on the Supreme Court. … He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he ‘must’ resign.” — Noah Feldman, Bloomberg
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