Justice Breyer's retirement sets Supreme Court up for even more political theater

·4 min read

The news that Justice Stephen Breyer will retire from the Supreme Court this summer comes as little surprise. Every day he stays on the job is another day Republicans could regain control of the 50-50 Senate and threaten to block his replacement.

By refusing to step down during President Joe Biden’s first year in office – he pushed back against such calls – the 83-year-old Breyer has played a dangerous game. But he is from a time when one party wouldn’t block a high court nomination except for cause, as Democrats tried and failed to do in 1991 when Clarence Thomas was accused of sexual harassment. Most nominees skated to confirmation; Breyer himself whisked through the Senate in 1994 by an 87-9 vote.

Those days are over.

Breyer’s one-year-late retirement reaffirms this unfortunate reality: The Supreme Court has become but another political branch, divided between Republican presidents’ conservative justices and Democratic presidents’ liberals. The idea that the justices are mere umpires calling legal balls and strikes, as Chief Justice John Roberts claimed at his 2005 confirmation hearing, is laughable.

Predictable justices on big cases

These days, you can predict how nearly all the justices will rule on the most consequential cases, from abortion and affirmative action to guns and religion, based on their political alignment. Gone are the days when justices such as Sandra Day O’Connor or Anthony Kennedy would exhibit such independence.

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The numbers tell the story: What was a 5-4 conservative court controlled by the often inscrutable Kennedy until 2018 has become a 6-3 court dominated by Donald Trump’s triumvirate. Neil Gorsuch won Antonin Scalia’s seat in 2017 after Senate Republicans blocked Barack Obama’s nominee the year before. Brett Kavanaugh moved the court to the right in 2018 when he replaced Kennedy, and Amy Coney Barrett moved it much further in that direction after the death of Ruth Bader Ginsburg in 2020.

Ginsburg, beloved by liberals after leading the court’s left wing during the last decade of her illustrious career, besmirched her reputation by refusing to step down while Obama could replace her. By retiring during Biden’s second year in office, Breyer should be able to avoid that legacy.

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That’s not to say Senate Republican leader Mitch McConnell and his devotees won’t try to gum up the works. But with Democrats in the White House through 2024, it seems unlikely Republicans could block any and all nominees until then.

What’s more, Biden now has the chance he has been waiting for to put the first Black woman on the court – most likely U.S. Court of Appeals Judge Ketanji Brown Jackson or California Supreme Court Justice Leondra Kruger. This would motivate Black voters in this year’s midterm elections and in 2024. Some Republicans, at least, may be loath to oppose such a historic nominee.

More vacancies? It may be awhile.

Looking ahead, only Thomas and fellow conservative Justice Samuel Alito are older than 70, so more vacancies could be a long time coming. This would perpetuate conservatives’ hold on the court, leaving Roberts and Kavanaugh as the closest thing to “swing” justices. Breyer’s retirement merely freezes the GOP’s court majority at six.

It also will deflate further Democrats’ hopes of “reforming” the court by adding additional (liberal) seats or instituting term limits, so that retirements would be scheduled rather than strategic. Those proposals were long shots even before Biden shunted them to a commission, which last month failed to reach any conclusions.

Lost quickly in the political debate about the high court’s direction will be erudite Stephen Gerald Breyer, who polls show remains unknown to nearly half the nation despite three decades of behind-the-scenes effort. He has been a workhorse, not a show horse, and the court is better off for his service.

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The next few months will be focused on replacing him, replete with all the political hypocrisy we have come to expect. Democrats will extol the new nominee’s credentials and demand swift confirmation. Republicans will decry the process and seek to debunk the selection. It will further sully the reputation of a court already plummeting in public opinion polls by making it all seem like politics as usual.

Which, of course, it is.

Richard Wolf reported on the Supreme Court, the White House and Congress during a 45-year career in journalism. Follow him on Twitter: @richardjwolf​​​​​​​

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This article originally appeared on USA TODAY: Breyer retirement sets Supreme Court up for political theater

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