- Liberal Supreme Court Justice Stephen Breyer, 82, needs to retire — now.
- Democrats control the Senate and White House, but that control is precarious.
- Breyer should give Democrats a chance to appoint his successor and keep the Court from becoming a seven to two conservative majority.
- Michael Gordon is a longtime Democratic strategist, a former spokesman for the Justice Department, and the principal for the strategic-communications firm Group Gordon.
- This is an opinion column. The thoughts expressed are those of the author.
It’s time for Supreme Court Justice Stephen Breyer to retire.
With both the White House and Senate in their control (for now), Democrats have what has become the rare moment to replace the longtime liberal justice on their own terms and stem the Court’s undemocratic move to the right.
Breyer needs to give the party that chance. Now.
The rarest of appointments
The narrow victories in Georgia by Sens. Jon Ossoff and Raphael Warnock paved the way for a Democratic Senate majority, and with it, the ability to freely appoint federal judges and justices.
The Biden administration and the Senate have been wasting no time using that appointment power: Biden has been nominating judges to the federal bench faster than any of his predecessors. But the most important appointment has thus far eluded him: a Supreme Court Justice.
In the era when the Supreme Court has substantial power over the direction of the country, appointing young justices who can serve for decades is essential.
Republicans have recognized that power and have made the Court a cornerstone of their minority-power plan over the past decade: their three most recent nominees were all younger than 55 at the time of appointment. Both of Obama’s appointees were in their 50’s as well. Going back even further, Clarence Thomas was 43 when he joined the Court in 1991.
With so much at stake, having a reliable vote for decades is vital.
That is why progressives are pushing for Justice Stephen Breyer, age 83, to retire. A Clinton appointee, he’s been a reliable vote for the liberals since he joined the Court. But if he doesn’t retire while Democrats own the Senate, we will likely see the arrival of another conservative justice, tipping the balance of the Court even further out of whack.
We’ve seen this “will they or won’t they retire” dance play out before.
In 2013, President Obama had a lunch with liberal Justice Ruth Bader Ginsburg at which he indirectly encouraged her to retire, knowing that Democrats might lose the Senate in 2015, and with it the chance to appoint her successor.
We all know what happened from there. Democrats did in fact lose the Senate majority and eventually the presidency. Ginsburg remained on the court until her death in 2020, paving the way for President Trump and Senate Republicans to ram through an appointment just before the 2020 election. As a result, the balance of the court shifted even further to the right, with six of the nine justices having been appointed by Republicans.
This one change on the Court has pushed the Court in a radically conservative direction, taken the swing vote power away from Chief Justice John Roberts, and will almost certainly have a historically negative effect on abortion rights and gun safety. Given the terrifying prospects of the Court now, imagine a 7-2 Court if Breyer doesn’t act now.
The time is now
With the narrowest of Senate majorities, the next year is perhaps Biden’s only chance to replace Breyer.
Midterms have a historical tendency to go against the party of the president, which means it’s quite likely (though by no means a sure thing) that Republicans will control the chamber after the 2022 elections. We know a Republican-controlled Senate can’t be trusted to vote on a Biden appointee, so it truly is now or never for appointing a young, liberal Justice to the Supreme Court.
Breyer has served nearly 30 years with distinction and has hinted that he doesn’t want to retire in part because he doesn’t want to politicize the court. But that ship has sailed: the Court is already in a full-blown legitimacy crisis and has been deeply politicized by the GOP. If Breyer were to retire when Biden can no longer appoint his successor, the crisis would only deepen.
We have seen the terrible decisions that a 6-3 conservative court has made, including moving closer to reversing Roe vs. Wade and ending the eviction moratorium that kept so many Americans housed during the height of the pandemic.
A 7-2 conservative-dominated Supreme Court would be much worse and would only further many Americans’ belief that the Court is no longer a trusted American institution.
I expected Breyer to retire at the end of the last Supreme Court term a few months ago. That would have been the best time to do it — before a new docket of cases arose.
Now I’d bet that he’ll do it next Summer after the current term ends. But the best time would be right now, leaving the Court upon the confirmation of a successor and leaving nothing to chance, either.
The clock is ticking.