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Justice Breyer has Retired: What Does This Mean for Democrats and America?

Matteo Cardarelli on the judicial life of Justice Breyer, and the legacy they leave behind.

The Supreme Court has seen a lot of action in the last few years. Fresh faces have replaced the old guard, and the Court has increasingly seized the spotlight in a vitriolic climate. In the oft-touted polarization that pervades America, the Court is an important measure of just how far the poison has seeped in. Justice Breyer’s retirement increases the dramatics by heralding the latest political dogfight over the nation’s highest court.

The second-longest serving member of the Court, Breyer’s holdings make him a solid liberal vote; he has upheld protections for abortion rights, and strongly opposes the death penalty. After Justice Breyer officially retires in June, President Biden will finally have the chance to insert new blood into an increasingly conservative Supreme Court. Three judicial replacements carried out in an unflinchingly partisan manner under the Trump Administration mean that in recent years the Court has lurched to the right. Biden now has the chance to get liberals on the board with the first nomination from a Democratic President in over a decade. To do this Biden is nominating Ketanji Brown Jackson, who would be the first black woman to serve on the supreme court. 

Time after time, Republicans have outmanoeuvred Democrats on the Supreme Court chessboard. If the last decade of political warfare has taught us anything, it’s that Republicans are just better at playing dirty. That was the message that should’ve been learned after the Merrick Garland fiasco; in an election year, conservatives saw their chance to hand an incoming Republican president a leg up. argued that the American people had the right to choose their new justice, not a President whose mandate had all but expired. Senate Majority Leader Mitch McConnell (R- K.Y.) refused to even hold a hearing for Garland. 

Yet somehow Democrats learned nothing from Garland-gate. In fact, it only got worse from there. Flash forward four years later to the death of Justice Ruth Bader Ginsburg: the Obama administration had left an octogenarian justice to hold the line during a Republican administration with bicameral backing, a startling act of political naivete. When she passed in September of 2020, President Trump’s nominee, Amy Coney Barrett – the youngest justice in Supreme Court history and decidedly conservative– comfortably navigated the confirmation process and landed a spot on the bench. 2020 was an election year just like 2016: where was the American people’s sacrosanct right to choose their own justice? Turns out that when your party stands to gain, the sacrosanctity of rights matters very little. 

Until the announcement on January 23, the Breyer situation was starting to look like it could be the next unwanted instalment to the Democrats’ list of Supreme Court blunders. There was little hint of the eighty-three-year-old retiring, and though the Senate is currently technically held by the Democrats, this is only with Vice-President Harris casting a tie-breaking vote to break the deadlock otherwise precariously poised at fifty-fifty. What’s more, the November midterms don’t look promising. Democrats are projected to lose the House, and the Senate could also flip. Given the circumstances, Mr McConnell, current Senate Minority Leader, had already alluded to the possibility of blocking a Biden nominee should the Senate change hands. The mastermind behind the Garland-Ginsberg debacle, Mr McConnell is no stranger to the machinations of the legal-political complex that underlies confirmation to the Court.

So Breyer’s decision takes a lot of pressure off of Democratic policymakers ahead of a possible catastrophe in November. It even suggests that the Party may have had a belated change of strategy concerning the Court. Justice Breyer’s retirement came amidst a flurry of lobbying from grassroots activists and politicians. In some ways, Ginsburg’s passing has been a learning curve. Rep. Mondaire Jones (D- N.Y.) openly called for Breyer to leave the bench in April of 2021, explaining, “People adore Ruth Bader Ginsburg. But the fact is, due to decisions or non-decisions around retirement, made by her, we got Amy Coney Barrett.” Current officeholders calling for a justice to retire is an obvious break from conventional politics. But this newfound activism in the institutional party words builds on grassroots liberals’ longtime desire for change. Brian Fallon, whose organization Demand Justice aggressively campaigned for Breyer’s departure, argued that liberals must stop ‘treating the Supreme Court with kid gloves.” His organization bludgeoned Breyer at every public appearance, even driving a van with a ‘Breyer Retire’ sign tacked on. Seemingly, he has his wish. It may be blunt, but it’s a needed change from the passivity of previous Democrats.

It’s impossible to know how much external pressure shaped his decision, but Justice Breyer admitted to being aware of the movement, saying that although he did not agree with its message, he appreciated its logic. Retrospectively, one wonders what would have happened if similar pressure had been applied on then 79-year-old Justice Bader-Ginsburg before the 2014 midterms when the Senate flipped red. 

Yet counterfactuals aside, as the situation, stands the truth is that a Biden appointee might actually matter very little. Democrats’ sudden realization that they have been playing the wrong game comes too little, too late. The Court is solidly conservative at six justices to three. Democrats are replacing one of their own with Ketanji Brown Jackson, not cutting the deficit. While it is true that they may breathe a sigh of relief at Breyer’s decision, it is equally true that things are unlikely to get better in the near future. The balance of the Court is unlikely to change as the more conservative justices are all relatively young – Alito is the eldest at seventy-one– and won’t leave the bench under a Democratic administration. 

Then perhaps there is a greater significance to be found in the symbolism behind Justice Breyer’s retirement than in the immediate change in the balance of the Court. His departure marks the inevitable replacement of the former class of liberals with a new batch more suited to its current environs. 

Make no mistake, Justice Breyer may be traditionally branded a liberal, but he is by no means an ideologue. In his recently-published autobiography, aptly titled The Authority of the Court and the Perils of Politics, he writes that justices must remain, “Loyal to the rule of law, not to the political party that helped to secure their appointment.” Time and time again, when pressured, Breyer reaffirmed the apolitical nature of his role. From the start, Breyer was a safe, consensus choice. A Clinton appointee, his name was recommended for the seat vacated by retiring justice Harry Blackmun by then-Senate Minority Leader Orrin Hatch, a Republican. The ensuing confirmation vote was a bipartisan affair – 87 in favour to 9 against. despite the recent turn in American politics, Breyer remains a firm believer in the power of compromise.

In the pre-2016 era, this may have wielded slightly more appreciation. But throughout the Trump Administration, opposition to Trumpian politics was articulated through the courts. As Mr Trump extended the reach of his executive power, it was the role of the Court to cut him down to size. Travel bans, abuse of executive privilege, refusals to respond to subpoenas, etc. The Trump administration was in many ways one protracted legal battle between the President and American legal institutions. In the dualism between Trumpism and Anti-Trumpism that still characterizes American politics two years after President Biden’s election, the Courts are the site of a pitched battle where sides must be taken. In a world of ingrained loyalties, Breyer’s commitment to compromise is increasingly out of place.  

Breyer is a negotiator, someone who believes in reaching across the aisle and splitting the difference if needs must. Given the current climate, this is hardly what Democrats value in a supreme court justice. Ideological consistency, loyalty to the flag; these qualities are in high demand as Democrats are likely to require them from the justice they select. With the Court stacked against them, liberals need a true guerrilla, not a diplomat. In 2022, compromise is out of fashion. 

For a man so clearly unafflicted by political fervour, his departure is an act with important political consequences. His brother Charles recently told the Washington Post that Breyer, ‘did not want to die on the bench.’ Maybe Breyer’s choice was personal. Maybe not; he was certainly aware of the political significance behind the retirement movement. But one thing is certain; his choice opens the door for a younger, fresher replacement, one more willing to openly confront their conservative colleagues. Any one of the names currently touted by the usual cabal of pollsters and political insiders would represent a shift to the left, in methodology if not ideology. 

As a long-standing member of the Court, Justice Breyer’s career deserves celebration. But the consequences and context behind his decision to retire may overshadow his retirement itself. For Democrats, an optimistic view of Justice Breyer’s retirement would suggest a change in how the party tackles judicial politics. A realistic one notes that this change comes too late in the game to make a difference. For Republicans? They could put up token resistance in the Senate and let liberals have this one. But that’ll never happen. More likely, the game of judicial hungry hungry hippos will see them come up with new, inventive ways to filibuster in an attempt to gobble up another seat. With the way the Court is balanced, does it even matter?

The greatest lesson behind Justice Breyer’s departure lies in a simple fact: He earned his post for his ability to understand his colleagues. In the three decades, the Justice has spent on the Court, this quality has become more burdensome than virtuous; there is no indictment of modern America more scathing.

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