Commentary

Column: Mr. Justice Breyer, thank you for your service. Now please retire.

August 26, 2021 9:23 am

U.S. Supreme Court | Susan J. Demas

People wonder how Republicans captured the U.S. Supreme Court, which now has a 6-3 conservative majority among the justices. Those six conservative justices were all nominated by Republican presidents.

Mostly, Republicans accomplished this long-sought goal simply by taking the high court seriously.

Even though terms like conservative and liberal shift somewhat over time, conservative in judicial terms usually includes skepticism about federal power, commitment to state prerogatives, defense of religion and religious liberty and heightened protections for private property and businesses.

Also, and most particularly, a willingness to restrict if not eliminate abortion rights.

Justice Stephen Breyer

Methodologically, conservatives judges self-identify with originalist or textual constitutional interpretation.

Republicans should have been able to constitute a reliably conservative court years earlier but were burned by Republican nominated Justices who either voted generally as liberals — such as William Brennan, Harry Blackmun, John Paul Stevens and David Souter — or did so on important issues — such as Sandra Day O’Connor and Anthony Kennedy.

In light of this history of failure, Republicans became focused on filling the court with reliably conservative Justices. In a 2005 editorial, the Wall Street Journal called this strategy, “No More Souters.”

With the death of Justice Antonin Scalia in 2016, the court was equally split between conservative and liberal Justices. On some issues, given Kennedy’s voting record, the court actually was comprised of a 5-3 liberal majority. The court was thus at a tipping point.

That is when then-Senate Majority Leader Mitch McConnell (R-Ky.) blocked the consideration of Judge Merrick Garland, President Barack Obama’s nominee to replace Scalia, claiming that it would be improper to consider a high court nomination during a presidential election year.

In the 2016 election, Donald Trump ran expressly on a promise to nominate justices from a list of reliable conservatives.

Then, when the chance came for then-President Donald Trump to nominate three justices, Republicans were ready and focused. That determination included a rush to affirm Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg in September 2020, right in the midst of a presidential campaign.

Democrats, on the other hand, have not been paying attention to the makeup of the court. Thus, there was no concerted pressure put on Ginsburg to retire in 2014 or earlier, when Obama and the Democrats, because of their majority, could have replaced her by repealing the Senate filibuster for Supreme Court Justices, as Republicans did later to confirm Neil Gorsuch in 2017.

Because Trump was able to replace Ginsburg with Barrett, the court has a solid 6-3 conservative majority instead of a shaky 5-4 majority that Chief Justice John Roberts might have moderated.

This court is going to make changes that progressives will detest, from abortion to unions to religion. And, really, who knows what else?

But if you think a 6-3 majority enables conservative changes in constitutional law, just imagine what a 7-2 conservative court would mean.

That is what will happen if Republicans are able to replace Justice Stephen Breyer, one of three current liberals on the court, along with Justices Sonia Sotomayor and Elena Kagan. Breyer will be 83 on Aug. 15.

Democrats, with their current Senate majority, may have only a narrow window to replace Breyer. If Republicans retake the Senate in the 2022 congressional election, which is a real possibility given how parties in power often fare in off-year elections, McConnell, currently the Senate minority leader, might reject any nominee that Biden proposes and just let the court get along with eight justices and a 6-2 conservative majority.

By law, a quorum on the court is six justices. So, Republicans could play a long waiting game after Breyer leaves the court and affirm no new Justice until the 2024 presidential election, or even later.

McConnell has already said as much if an opening occurs in 2024, but that is just as likely to happen in 2023 or 2026.

Justice Clarence Thomas, the next oldest justice, will only be 80 in 2028, younger than Breyer is now.

There is no reason to think Breyer is currently unable to do his job.

On the other hand, at 82, there are no guarantees. Justice Oliver Wendell Holmes, Jr., was 90 when he retired from the court, the oldest justice in history. Usually, death or illness force justices to leave the court well before that point.

Despite the building pressure on Breyer, there is no indication that he will resign and every indication that he intends to stay for some unspecified time. In December, he said in an interview, “I mean, eventually I’ll retire – sure I will, and it’s hard to know exactly when.”

Last week, Breyer told CNN that he was not yet ready to retire, further flummoxing liberals worried about the court’s composition.

In a recent article, election law expert Richard Hasen noted that Breyer is worried that if he leaves the court in the face of calls for his resignation for purely partisan reasons, his action would further politicize and polarize the court and the nation. Hasen criticized that idea, arguing that delay would be more likely to have that effect.

But I imagine that Breyer’s desire to stay on the court is rooted in more personal considerations.

The late Justice Ruth Bader Ginsburg

We often think of ourselves as indispensable. We cannot imagine a world without us.

I bet Ginsburg felt that way. Breyer probably feels that way.

And it is true that his is a unique voice on the court. No other Justice has his nuanced view of law. Breyer eschews rules, favoring instead a kind of case-by-case pragmatism. This is why he is the liberal Justice most likely to vote for allowing religious symbols in the public square, for example.

Breyer also is unique in that he is the most economically sophisticated justice on the court. Breyer would be an unusual person if he could view the loss of his talents on the court with dispassion.

But the truth is that given the current makeup of the court, Breyer will only write majority opinions that conservatives can join—like his recent student cheerleader speech opinion. Most of the time, he will be in dissent in important cases for his remaining time on the bench, as he was in the case denying union access decided at the end of the court’s term in June.

Breyer is not going to change the basic commitments and determination of the conservative majority.

Simply put, Breyer will not change the law by remaining on the court. But he might do so by resigning. Right now.  Republicans have looked at the court in terms like this for years. Democrats had better start doing so.

This column first ran in the Advance‘s sister outlet, the Pennsylvania Capital-Star. Read the column here.

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Bruce Ledewitz
Bruce Ledewitz

Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears regularly on the Pennsylvania Capital-Star’s Commentary Page. He has a podcast, “Bends Toward Justice.”

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