Ordinarily the announcement that the senior liberal on the Supreme Court – a stalwart defender of abortion rights, a vigorous opponent of strict construction of the Constitution, and a jurist with no compunction to taking strong objection to the views of a conservative chief justice who was his friend – is retiring would be a moment of deep disquiet among American liberals.
Instead, the news that Justice Stephen Breyer is to announce his retirement Thursday produced a huge sigh of relief from that slice of American civic life.
Democrats watched helplessly as Senate Republicans confirmed three of former president Donald Trump’s Supreme Court nominees that created a 6-3 conservative majority and pushed the high court dramatically to the right. They worried that unless Justice Breyer, 83, retired this year, the Democrats might lose their fragile control of the Senate, where court nominees are confirmed, and President Joe Biden might not be able to seat a replacement.
This announcement relieves those fears – and, unless there is a death, retirement or party defection among Democratic lawmakers, it almost assures that Mr. Biden will be able to follow through on his campaign pledge to place a Black woman on the bench, because only a simple Senate majority is required.
Just to be safe, Justice Breyer told close associates privately this week that his retirement would be subject to the appointment and confirmation of a replacement. One of his motivations: He watched Justice Ruth Bader Ginsburg, a close friend, remain on the court even after several bouts of cancer, dying while Mr. Trump was in office and paving the way for the appointment and confirmation of the conservative Amy Coney Barrett onto the court in 2020.
“Ultimately, the Ginsburg experience showed the consequences of staying on too long,” said Daniel Urman, who teaches American constitutional law at Northeastern University. “He knew it was time.”
Justice Breyer’s departure and the politics attendant to it stand in dramatic contrast to his entrance into the courts in the days after Ronald Reagan was elected president and the Republicans swept to control in the chamber.
His nomination by Jimmy Carter to the U.S. Court of Appeals came to the Senate in the last days of the repudiated president’s term in 1980. But Strom Thurmond of South Carolina, the conservative Republican senator who was the incoming chairman of the Senate judiciary committee, told colleagues that Justice Breyer deserved confirmation, which he won on an 80-10 vote.
Justice Breyer’s replacement will face Senate confirmation in an entirely different political atmosphere in Washington.
“The next appointment is critical,” said former Democratic senator Paul Kirk Jr., of Massachusetts, who once worked with Justice Breyer on the staff of former senator Edward Kennedy. “People argue that the Supreme Court is non-political but the court has taken on a political tint. Every democratic institution is under siege and distrusted by some segment of American society. The court is the last resort.”
That outlook squared with the view Justice Breyer expressed more than two decades ago in an endowed Harvard Law School lecture named for his principal pugilistic partner on the court, former justice Antonin Scalia, as ardent a supporter of strict constructionism as Justice Breyer was an opponent of the notion, which holds that the Constitution should be interpreted literally with little leeway for contemporary factors.
In those remarks Justice Breyer, who once wrote a book on what he called the “living Constitution,” expressed a view common to both jurists: “The court’s power, like that of any tribunal, must depend upon the public’s willingness to respect its decisions, even those with which they disagree and even when they believe a decision seriously mistaken.”
Justice Breyer’s retirement has been a recurrent topic of speculation in capital circles.
As long ago as last year, he discussed the timing of that decision with friends and with at least one justice appointed by a Republican president. He shied away from retirement in large measure because of his argument – ardently held by the justice, viewed as naive in Washington and academic circles, and greeted with disbelief by those who argued that the high court had been poisoned by partisanship – that members of the Supreme Court were neither Republicans nor Democrats, were insulated from partisanship and should resist being drawn into contemporary public debates.
But the work of the court places justices in the middle of public debates, and Justice Breyer often was in the minority on the court on issues such as the death penalty, the use of race in school assignment, and corporate speech.
The decision by Justice Breyer, the oldest member of the court, was no surprise to the Biden White House, which learned of it Tuesday. All presidential administrations have at hand a list of potential nominees, in the Biden case Black women.
One name that surfaced quickly was federal Judge J. Michelle Childs, a favourite of Representative James Clyburn of South Carolina, who is credited with giving Mr. Biden his breakthrough victory in his state’s primary. Other names already being floated include Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the District of Columbia and Justice Leondra Kruger of the California Supreme Court.
There is an outside chance Mr. Biden might tap his vice-president, Kamala Harris, herself a onetime attorney-general of California and, as a former senator, perhaps entitled to the customary practice of “senatorial courtesy,” though courtesy has been a diminishing characteristic in the modern Senate.
If Mr. Biden moved this way, he would satisfy his election-year pledge, remove a governing partner who has received low marks from both political figures and political commentators, placate an unhappy occupant of her position by granting her a prestigious lifetime position with far more power than she now possesses, and clear the field if he decided not to run for a second term. In her vice-presidential role as president of the Senate, she is armed with the power to break ties and thus almost certainly could actually vote for her own confirmation.
Such a manoeuvre, however, could complicate Mr. Biden’s effort to select a new vice-president, who under the 25th amendment would require a majority vote of both houses of Congress.
The departure of Justice Breyer stands as a symbol of the end of a traditional view of the role of the Supreme Court as being above politics. In a conversation seven months ago, Justice Breyer told me the goal of a Supreme Court justice was “to consider cases on the merits, be true to the records and true to the law, and to look across time from 10,000 feet to consider how your decision will affect the world as it is and will be in the future.”
And yet at the very least, Justice Breyer’s decision to leave the court will affect the United States as it is, and how it will be in the future.
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