FOR THE DEMOCRATS, JUSTICE BREYER MADE THE RIGHT DECISION

 

                                     …Retiring SCOTUS Justice, Stephen Breyer

 

With the GOP in such disarray: Will Breyer’s replacement be easily confirmed?

 

Justice Stephen G. Breyer will retire at the end of the Supreme Court’s current term, giving President Biden a chance to reinforce its liberal minority and deliver on his campaign pledge to make history by nominating the first African American female justice.

Breyer, at 83, is the court’s oldest justice and he was nominated to the court in 1994 by President Bill Clinton.  Breyer has been under unprecedented pressure to retire while Democrats have narrow control of the Senate, which must confirm Supreme Court nominees. The current term concludes at the end of June.

Breyer, known for his stoic humor, came up with his standard reply when asked about his time to retire: “I don’t think I’m going to die here — I hope”   Breyer told The Washington Post. “There are a lot of considerations, and I’ve mentioned health, I’ve mentioned the considerations of the court. I’m aware of what’s in the newspapers.”

It had been expected that Breyer would probably retire this term, but the timing of an announcement was unknown. The Supreme Court would not comment, but the justice met with the president yesterday.  The president was informed last week of Breyer’s plans, and the White House began to call senators about the news. NBC News was the first to report Breyer’s intentions.

A replacement chosen by Biden would not change the court’s conservative supermajority; Breyer is one of only three liberal justices. But it would give Biden the chance to have his nominee considered by a more favorable Senate and it would mean a younger colleague for the court’s other liberals, Sonia Sotomayor, at 67, and Elena Kagan, at 61.

Senate Majority Leader Charles Schumer (D-N.Y.) indicated that Biden’s eventual nominee would be considered and confirmed “with all deliberate speed.” His Republican counterpart, Minority Leader Mitch McConnell (Ky.), did not answer when asked whether the GOP intends to try to block Biden’s pick.  Just as it did in 2016 with President Barack Obama’s final nominee to the court, Merrick Garland. “We don’t know who the nominee is yet,” McConnell has said.

The crucial difference today is that Republicans no longer control the Senate.

Biden has declined to get ahead of Breyer’s announcement.  “Every justice has the right and opportunity to decide what he or she is going to do and announce it on their own,” the president said. “There has been no announcement from Justice Breyer. Let him make whatever statement he’s going to make. And I’ll be happy to talk about it later.”

Biden’s pledge to nominate an African American woman is a first. There have been 108 White men on the court and only two Black men.  That being, Thurgood Marshall and the very GOP partisan, Clarence Thomas. There have been five women: Sandra Day O’Connor, Ruth Bader Ginsburg and three current members: Sotomayor, Kagan and Justice Amy Coney Barrett

There have never been four women serving at the same time on the nine-justice court, and the next version of the court headed by Chief Justice John Roberts Jr. seems likely to be the most diverse, between men and women in the court’s history.

The two potential replacements for Breyer most often mentioned are Judge Ketanji Brown Jackson, a former Breyer Supreme Court clerk who in June was confirmed to join the U.S. Court of Appeals for the D.C. Circuit.  Also, the California Supreme Court Justice Leondra Kruger, a former Justice Department official who has represented the government at the Supreme Court as deputy solicitor general.

Others will surely be added to the list, and Biden probably will cast a very wide net. There are few Black women on the federal appellate court bench, the traditional spot from which Supreme Court nominees are chosen.

On the current court, only Kagan did not serve previously on an appeals court.

It seems likely that Breyer will make his leaving the court contingent on the confirmation of a successor. Exactly how that will work is unclear, as the court is at the midpoint of its schedule for hearing cases, and it aims to have its work completed by the end of June.

Senior Senate aides have said there is precedent for completing the confirmation work on a judge before the seat is officially vacant.

Breyer was chosen for the court the year after Clinton picked Ruth Bader Ginsburg.  Breyer interviewed for that opening, too, but he was in pain from a bicycle accident and reportedly the meeting did not go that well.

Breyer is a native Californian who served on the U.S. Court of Appeals for the 1st Circuit in Boston. He is an intellectual who reads and writes in French and has an abiding interest in architecture. But he also often seemed like a talkative law professor, his long and winding questions sometimes leaving the lawyers arguing cases, struggling to grasp Breyer’s point.  Once when a lawyer confessed that he didn’t understand what Breyer was getting at, the justice acknowledged with a smile that he was afraid of that.

Breyer is known as a pragmatic liberal, much more moderate than the other liberals on the bench and he is willing to search for compromise among the court’s ideologically divided justices. In that way, he and Kagan sometimes departed with Ginsburg and Sotomayor on the details of a case. One of his favorite colleagues was Sandra O’Connor, the court’s ultimate pragmatist.

He was part of the court’s compromise with Roberts that saved Obamacare in 2012. He was less willing than some liberals to side with criminal defendants.

“Justice Breyer hasn’t always ruled for us, but he has always earned our respect,” said David Cole, national legal director of the American Civil Liberties Union (ACLU).

The term that ended last summer was one of the most productive and significant in Breyer’s career, and he received some of the top assignments from Roberts.

Breyer wrote the majority opinion when the court rejected the third challenge at the Supreme Court to the Affordable Care Act.  Earlier, he wrote the court’s decision that Google did not violate copyright law in a multibillion-dollar showdown with Oracle, a closely watched case in the tech world.

And he wrote the court’s defense of the First Amendment rights of public school students in a case involving a high school’s punishment of a cheerleader for a profane rant on social media.

Though he might be closer to the center than his liberal colleagues, he is almost always a reliable vote on the left on issues such as affirmative action, gun rights and abortion, where he wrote some of the court’s most important opinions protecting abortion rights.

He is relentlessly optimistic and cheerful, and only occasionally did that persona slip.

In 2015, after years of hearing cases about how to fairly administer capital punishment, Breyer said in effect that he had decided it could not be done. He called for the court to reconsider the constitutionality of the death penalty. Only Ginsburg joined his call.

It is also likely that this former colleague played a part in his decision to leave now.

Ginsburg declined to retire while President Barack Obama was in office, thinking Donald Trump would not be elected, and Democrats paid the price. After her death in September 2020, Trump and Republicans in the Senate pushed through the nomination of Barrett just days before Election Day, and after voters already had started to cast the votes that led to Trump’s defeat.

The increasing partisan polarization surrounding the court has been one of Breyer’s concerns, one he shares with the conservative chief justice. He addressed it this spring during a speech at Harvard Law School.

“If the public sees judges as politicians in robes, its confidence in the courts…and in the rule of law itself… can only diminish, diminishing the court’s power, including its power to act as a check on other branches,” he said.

A decision to retire now, when a like-minded president has a chance to name a like-minded successor, could feed that view.  History shows retiring justices do just that.

Breyer’s plan is “the latest in the modern trend of politically timed retirements at the Supreme Court,” said Gabe Roth, executive director of the group Fix the Court. “While we know Breyer is a true believer that the court is an independent, apolitical institution, the nomination and confirmation scheme as it currently exists makes that an impossibility.”

The justice faced unprecedented pressure to leave, especially after Ginsburg’s example of what could go wrong.

 In an interview with the New York Times in August, Breyer acknowledged having a sympathetic president in office might factor into his decision. By the next day, he indicated in the interview with The Post that he regretted getting into it.

At the end of last term, Breyer already knew that the court was going to be taking on some of the issues about which he cared and that probably influenced his decision to stay.

 Breyer has seemed occasionally irritable on the bench, and unhappy about being outnumbered by the conservative majority.  For instance, on the issue of a Texas law that, in Breyer’s view, unconstitutionally impairs the right to abortion before fetal viability.

It is rare for a justice to make their intentions known this early.  But Breyer obviously knows that this will be looked at as a positive for the Biden administration.  And with Biden’s unfortunately low poll numbers, this will only be a good positive for the administration.

Breyer also knows that he can now spend more time with his grandkids.  At 83, with his health in question, he knows he needs all the time-to-relax that he can get.

Copyright G. Ater 2022