Jurisprudence

Stephen Breyer’s Apparent Retirement Plan Will Backfire

Brett Kavanaugh, Neil Gorsuch, Stephen Breyer, and John Roberts mill around at an event.
Justice Stephen Breyer surrounded by more conservative colleagues. Brendan Smialowski/Pool/Getty Images

The New York Times reported last month that Supreme Court Justice Stephen Breyer, age 82, has been resisting calls for his retirement from fellow progressives. The reason? Breyer apparently worries that retiring in the face of a public pressure campaign from Democrats will increase polarization and a politicized view of the Supreme Court. In reality, a Breyer retirement delay could well have the opposite effect. If Breyer delays too long and Democrats lose control of the Senate before a successor is chosen, then Mitch McConnell could have the opportunity to block a Breyer replacement and supercharge the last five years of intense polarization around the court.

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It’s not hard to imagine how a Breyer delay increases the politicization of the court. Breyer waits to retire for a couple of more years, or even a few more months. Democrats lose control of the Senate in the 2022 midterm elections, or because an elderly member of their bare Senate majority passes away and gets replaced with a Republican, restoring Mitch McConnell to his perch as Senate majority leader. Breyer dies or becomes ill soon after Republicans retake the Senate and leaves the court. President Joe Biden, fulfilling his campaign pledge to nominate a Black woman to the Supreme Court, chooses a judicial superstar like California Supreme Court Justice Leondra Kruger or (soon-to-be D.C. Circuit Judge) Ketanji Brown Jackson. McConnell shamelessly announces that Republicans will hold no hearings for a Supreme Court justice until after the 2024 presidential elections, much like he ran out the clock on a hearing for Merrick Garland to fill the late Justice Antonin Scalia’s seat. Democrats stage protests about the blockade of the nominee, and the nominee’s face is featured prominently in advertising about the court. A key debate in the 2024 presidential election is about who is going to take the seat on the Supreme Court, with knowledge that not only Breyer’s spot, but also likely the seats of Justices Clarence Thomas and Samuel Alito (two staunch conservatives) could open up with a Republican presidential win in 2024. The court is once again the political football in our national arena.

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Is there any reason to think that such a scenario wouldn’t play out that way? It’s true that a delay of up to two years on filling a Breyer seat would be longer than the delay in filling Scalia’s seat, which went nine months between his death and the election of Donald Trump, who eventually replaced him with Justice Neil Gorsuch. But there’s no reason to believe that McConnell would have the least amount of shame over a longer delay. Indeed, McConnell likely would relish the opportunity to lead such a delay. It also seems plausible that it was the Scalia opening that spurred so much enthusiasm among evangelical voters and others for Trump over Hillary Clinton in the 2016 presidential election, and he could want history to repeat itself. Although Democrats are getting more savvy about the importance of the Supreme Court, it’s been a motivator of voters of the right more than the left.

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Whether or not the Supreme Court kills a woman’s right to choose and overturns Roe v. Wade by the 2022 midterm election, the issue is likely to motivate voters on both sides to come and vote for president based on the future of the Supreme Court. Already all the justices on the court appointed by Republican presidents are conservatives who are skeptical of a constitutional right to abortion and all the justices appointed by Democratic presidents are liberals who have supported abortion rights. A 2024 presidential campaign season centered on the role of the court would only further convince the public that the justices are no more than political tools of the parties.

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I understand Breyer’s reluctance to leave the court in the face of public pressure to step down. If he does retire, it might look like he was doing it to help the party of the president, Bill Clinton, who appointed him. The public campaign to convince Breyer to do it also could well backfire (and of course this article could be viewed by the justice, if he sees it, as part of the campaign).

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But Breyer, a former Harvard Law professor, is smart. Although his ideal of the court being above the fray in politics is a worthy aspirational goal, he must know it doesn’t reflect the current moment. He also must know that he’s not infallible, looking at the experience of his friend Justice Ruth Bader Ginsburg. She passed up the chance to retire when Barack Obama was president and Democrats controlled the Senate. She lived a few more years despite multiple cancer diagnoses, but she sadly did not live to see Joe Biden take office. She died, allowing Trump to replace her with Supreme Court Justice Amy Coney Barrett. This turned the court from a 5–4 conservative court where the liberal justices could sometimes pick off a conservative into a 6–3 court where that task is considerably harder.

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In the next few weeks, the court is going to make some momentous decisions about voting rights, the clash between religious liberty and LGBTQ rights, campaign finance disclosure, and Obamacare. Next term promises to be even more divisive, with guns and abortion among the cases already on the court’s agenda.

If Stephen Breyer does not want to add to the politicization of the court, he should retire at the end of this term, when Democrats could easily confirm Kruger or Brown Jackson, or another highly qualified progressive jurist, as his replacement. His retirement and the subsequent confirmation process would be a nonevent for most people, almost certainly putting a strong justice in his place. He could then spend his time advocating for a less politicized Supreme Court, speaking and writing about this urgent issue. It would be a very worthy addition to an impressive legacy. The alternative is likely being remembered not only as the person who helped create a 7–2 conservative Supreme Court supermajority, but more importantly as a justice whose delay thrust the court into a pitched partisan battle over its future and that of the country.

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