Stephen Breyer Should Retire or Risk Making Even More Conservative Supreme Court


  • Supreme Court Justice Stephen Breyer is really old, and so are the people in charge of replacing him.
  • It’s time for Breyer to retire and let the Democratic-controlled Senate approve his replacement.
  • Mitch McConnell has vowed to block future nominess, so the longer Breyer waits to retire, the more likely it is that the Supreme Court is dominated by conservatives indefinitely.
  • This is an opinion column. The thoughts expressed are those of the author.
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It’s already ridiculous that the foundation of this country relies on who the president is when one of nine geriatric Supreme Court justices either dies or retires. It’s doubly ridiculous then, that a Supreme Court justice would understand this fickle structure, see its constant abuse by one political side, and yet refuse to retire when the party that most aligns with their judicial philosophy is in power.

This was the case with Justice Ruth Bader Ginsburg, who rejected calls to retire during President Obama’s administration when it appeared the Senate could slip from the Democrats’ grasp. Obama — who personally tried to nudge Ginsburg into retirement — would have been responsible for choosing her replacement, and a Democratic-controlled Senate could have then confirmed someone who aligned with Ginsburg’s liberal values. But Ginsburg decided to stick around, and her death years later during Trump’s administration gave Republicans a stranglehold on the court.

Apparently, history really does repeat itself, as another left-leaning, 80-something year-old Supreme Court justice is refusing to retire at a time when the Democrats have a precarious hold on the Senate, and thus, a chance to replace them with an ally before midterm elections potentially screw that up. Indeed, Mitch McConnell has pledged that if the Republicans do retake the Senate, he will block Biden’s nominees to the Court.

So yes, Justice Stephen Breyer needs to retire — tomorrow. The longer he waits, the more likely it gets that the country ends up with a Supreme Court dominated by conservatives.

Dissent

It takes a simple majority in the Senate to confirm a president’s nominee to the Supreme Court. Currently, the Senate is split 50/50 between Republicans and Democrats. Since Republicans did away with the filibuster for Supreme Court nominees in their push to confirm Brett Kavanaugh, Democrats could still confirm a liberal justice with this margin, as Vice President Kamala Harris would serve as the tiebreaker.

But that margin is incredibly perilous because, frankly, there are some truly ancient Democratic senators who could go at any time. 16 Democratic senators are at least 70 years old, and two of them, Patrick Leahy and Dianne Feinstein, are in their 80s. If even one of these 16 retires — or worse — then a Biden-appointed justice nominee is no longer a shoe-in via senate approval. Additionally, 19 Democratic senators belong to states with Republican governors who would appoint Republicans to replace them.

What’s even less certain is what’s going to happen in the midterm elections in 2022. Republicans might not need Democratic senators to retire because they might just lose their contests anyway, reshaping the composition of the senate and potentially making it harder for Biden to get a justice nominee through the door.

That makes now the best moment for Stephen Breyer to retire, but like Ginsburg before him, he’s being quite stubborn about it. Ginsburg held off on retiring because she felt that Hillary Clinton was going to win the 2016 election. I don’t blame the thought process, but Breyer should learn from that mistake and not take any risks when it comes to the unknowable future. Just retire already.

Columnist Noah Feldman wrote in Bloomberg that the idea of retiring “would betray Breyer’s own career-long objective of making decisions based on what is right for the country, not for one party.”

But retiring is a decision based on what’s right for the country. It’s long past time for older politicians and judges to stop pretending the left and the right are equal in their ambitions for the country. Democrats did not march along to former President Trump’s racist and hateful endeavors, Republicans did. Democrats did not utilize apathy when it came to an international pandemic that killed 500,000 Americans, Republicans did. The Republican party isn’t going through a Trump phase, that’s just who they are now.

Breyer was nominated for the court by President Bill Clinton in 1994. That’s nearly 30 years of influential decisions he’s played a role in. The things that Breyer has voted in support of — colleges promoting diversity, banning the death penalty for minors, a further separation of church and state, and more — could all be at risk of being overturned if he doesn’t retire now and lower the odds for an even more conservative Court.

And the idea that the judicial nomination process, even for the Supreme Court, is divorced from politics has always been a farce, but especially after the past few years. Mitch McConnell essentially stole a pick from Obama — stopping Merrick Garland from becoming a justice, Trump was able to shove three Justices on the Court despite losing the popular vote, and Republicans had no issue rushing Amy Coney Barrett into the court just weeks before the election that resulted in a Democrat as the new president. 

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.

Progressive law groups are also putting pressure on Breyer to retire. On June 16, experts from Harvard Law School, Yale Law School, the University of California-Berkeley School of Law, and more warned in an open letter that an “even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk.”

If Stephen Breyer wants to do what’s right for the country, then retiring is a no-brainer. Let Biden replace you with someone whose more progressive ideals can help steer the country away from moral misconduct I just mentioned. Go live the rest of your life on a vineyard somewhere, knowing that your replacement is upholding your values anyway. The best chance for a Senate-approved Biden nominee is right now, and the odds only worsen with the time.



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