Last week, the oldest justice on the US Supreme Court, Stephen Breyer, announced he will retire at the end of the court’s current term in June and end his nearly-three decade tenure on the nation’s highest court.
Described as a “bittersweet” moment by President Biden, Breyer’s retirement punctuates an unsettled few months for the liberal movement in the United States, although it does not change the power dynamics of the conservative-dominated US Supreme Court.
Despite its initial foundation as a non-partisan institution intended to act as a counterweight to the fitful changes of the White House and Congress, the contemporary Supreme Court is undoubtedly dictated by the tides of modern politics. Breyer’s announcement is no different.
Following former-President Donald Trump’s successful installation of three justices in his four years in the White House, the Supreme Court is currently tilted 6 votes to 3 in favour of Republican-leaning judges. To gain this advantage, Senate Republicans removed the 60-vote filibuster to approve a Supreme Court nominee in 2017; this rule change, combined with a concerted pressure campaign and recent historical warnings that led to the court’s shift towards its current conservative ‘super-majority’, likely facilitated the timing of Breyer’s decision.
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To instate a new justice, a president’s nomination still needs a majority approval from the Senate – a barrier that is far from easy in Washington these days. If Breyer had chosen to stay on the court past this November’s midterms, the Democratic Party’s likely loss of the Senate would have severely complicated the process of finding his replacement if it were needed.
We only need to turn the clock back less than two years to see what happened last time an ageing liberal justice decided to overstay their time on the court, when the passing of one of the court’s most revered former-justices, Ruth Bader Ginsberg (RBG), enabled her seat to flip across the political aisle.
Put simply, despite being an octogenarian, Ginsberg resisted retirement when her replacement could have been determined by then-President Barack Obama and a Democrat-led Senate ahead of the 2014 midterms.
Her decision to continue on the court turned out to be a fateful one, when she tragically passed away mere weeks before the 2020 presidential election. This gave Republicans the opportunity to hastily fill her seat with a conservative justice (Amy Coney Barrett), turning a close 5-4 split on the court into its current conservative dominance.
No doubt about it, RBG is still remembered as a liberal icon in the United States who blazed a trail for women’s rights and progressive causes. However, she has been criticised for her commitment to stay on the court beyond when her successor could be definitively chosen by a fellow Democrat, and it is likely that the lessons from her untimely death played a role in Breyer’s recent announcement.
It is true that Ginberg’s passing coincided with Republicans holding the White house and the Senate, and President Biden still has around three years left of his first term. However, given the bleak outlook for the Democrats in this year’s midterm elections and the likelihood that the GOP will take back control of Washington, different issues may have emerged if Breyer had decided to hold out even for a few months.
We only have to look back to 2016 to see that.
That year, a few months before the presidential election, President Obama attempted to nominate a Supreme Court justice without the Senate on his side – trying to be the first Democrat to do so since 1895. Subsequently, the Republican-controlled chamber didn’t even conduct hearings for Obama’s nominee Merrick Garland (now Biden’s Attorney General), and a similar frustrating resistance to whoever Biden would potentially nominate post-midterms could easily be expected.
Notably, at the time the GOP argued that the seat shouldn’t be filled in an election year – a hypocrisy they flatly ignored when Republicans filled RBG’s seat with Coney Barrett just weeks before the 2020 election.
The person I nominate to replace Justice Breyer will be someone with extraordinary qualifications. Character, experience, and integrity.
And they will be the first Black woman nominated to the United States Supreme Court.
— President Biden (@POTUS) January 27, 2022
In the current Senate, moderate Democrats Joe Manchin and Kyrsten Sinema are two of the biggest obstacles, and there have been several occasions during President Biden’s first year that they have flexed their outsized influence. This included halting sweeping voting rights packages a few weeks ago, as well as significantly cutting the size of their own party’s trillion dollar ‘Build Back Better’ infrastructure bill – and potentially ending it entirely.
This is not to say they will oppose Biden’s pick, but it is worthy of a reminder that whoever the president nominates will likely have to satisfy the entire Democratic caucus when facing the almost exclusive resistance of the modern Republican Party.
Morning Consult poll:
Just 19% of Republicans support President Biden’s decision to appoint a Black woman to replace Justice Breyer on the Supreme Court.
— Kyle Griffin (@kylegriffin1) February 4, 2022
Biden is expected to make his announcement by the end of the month, and has re-committed his 2020 campaign pledge to nominate the first ever black woman to the court. Names being frequently floated include Ketanji Brown Jackson, a judge on the District of Columbia Circuit Court of Appeals, Judge J. Michelle Childs of South Carolina, and California Supreme Court Justice Leondra Kruger; however, despite making history, whoever Breyer’s replacement will be will still only hold one seat. In a chamber that is now unmistakably one sided, they won’t have much sway.
Fundamentally, when looking at whether Breyer’s retirement is important, the answer is both yes and no – but more no.
There are silver linings. For the left, Breyer’s retirement means a more secure liberal seat in the United States’ highest court into the future, Biden’s commitment to nominating the first black woman to the court has been roundly applauded by Democrats, and filling the seat would provide a very public win as Biden enters one of the most important periods of his presidency.
However, on the other side, Americans should be anticipating that the court’s power dynamics will translate to a continuous repositioning to the right. As we enter the expectedly-contentious midterm election cycle, the court will hear cases that are among the most divisive issues in modern America, including gun rights, affirmative action, and abortion. Most notably, the court has indicated it potentially could overturn Roe vs Wade in the summer and end the half-century constitutional right to abortion access, an outcome sure to raise the national temperature in an already fractuous political climate.
Thus, whilst there may be historic importance to Breyer’s retirement and his replacement will certainly generate headlines, in the end the direction of America’s highest court is already set in stone for the foreseeable future – and it will have consequences.
Editor’s Note: The opinions expressed here by Impakter.com columnists are their own, not those of Impakter.com. — In the Featured Photo: Senate Building, Washington, DC. Featured Photo Credit: Brookings Institution, Flickr