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Justice Stephen Breyer remaining on the Supreme Court is a gamble

It's the same play that Ruth Bader Ginsburg made — but he's sure it'll turn out different.
Image: Justice Stephen Breyer outside of the Supreme Court in Washington in 2011.
Justice Stephen Breyer, outside the Supreme Court in 2011.Fred R. Conrad / NYT via Redux file

UPDATE (Jan. 26, 2022, 12:15 p.m. ET): Supreme Court Justice Stephen Breyer will retire from the court at the end of the current term, clearing the way for President Joe Biden to name his replacement.

Last week, Supreme Court Justice Stephen Breyer disappointed many liberals by announcing that he doesn’t have any plans to step down from the high court at this time.

The pressure from the left to get Breyer to resign so that President Joe Biden can nominate a successor in his first year was already overwhelming. Breyer’s comments to CNN’s Joan Biskupic kicked criticism from the left into overdrive: “a pathological disregard for other human beings,” Adam Serwer wrote. “[T]his is about ego,” Demand Justice’s Brian Fallon added. Or, as Imani Gandy put it: “What the hell, man?”

The core of the urgency likely stemmed in large part from Justice Ruth Bader Ginsburg’s death less than two months before the 2020 election, which led to the quick confirmation of then-President Donald Trump’s third Supreme Court nominee, Justice Amy Coney Barrett.

And yet, Breyer remains.

The kindest interpretation of Breyer’s move — or lack thereof — is that he’s gambling that the good he can do by staying to advance his goals outweighs the risks that staying poses to those same goals. Putting aside for a minute the question of whether that’s a smart bet, we have to ask how strong is Breyer’s argument here?

Essentially, Breyer is likely weighing a couple of points. First, his replacement wouldn’t change the ideological balance of the Court. Second, that person would need to adjust to the dynamics of being on the Supreme Court — a formidable task even for current appellate judges. With those factors in mind, Breyer has decided it’s important that he stay on the court for now.

Even if Breyer is right, though, it still leaves him — and the country — dependent on three gambles on his part breaking his way.

Also, any replacement would be at the bottom of the pecking order compared to the more senior role Breyer holds. Breyer, in his comments to Biskupic, appears to view his standing — only Justice Clarence Thomas has been there longer — as an advantage to his and, in most cases, liberals’ interests. By contrast, even though Justices Sonia Sotomayor and Elena Kagan have been on the high court for more than a decade, half of the bench’s six conservatives have been in their seats longer.

The institutional priorities Breyer has staked out are also at play. As Slate’s Dahlia Lithwick laid out in detail, Breyer, like Chief Justice John Roberts, has made a point to stress the nonpolitical nature of the court — a position that can be strongly disputed, but, as Lithwick notes, one that Breyer is unlikely to change. A speech Breyer gave on the topic of the Supreme Court and political neutrality this year is due to be released as a book this fall. Even outside of the courts, Breyer holds out hope for compromise. Breyer talked this May about the importance of Democratic lawmakers finding common ground with Republican colleagues, for example.

In practice, this translates to Breyer likely wanting stay for at least the next term to help craft a way out of the most perilous cases for liberals by finding common ground with his conservative colleagues: most notably, major cases involving abortion and gun rights, but also cases addressing the death penalty and Puerto Rico.

Breyer wrote the last majority opinion for the court in an abortion case, 2016’s Whole Woman’s Health v. Hellerstedt, and the last plurality opinion for the court in its most recent abortion case: 2020’s June Medical Services v. Russo. He is the last remaining member of the four dissenting justices in 2008’s District of Columbia v. Heller gun rights decision. Breyer also wrote a key dissenting opinion in 2015 questioning the ongoing constitutionality of the death penalty and a vigorous dissent in a 2016 case defending Puerto Rico’s interests in our governmental system.

As the court takes on these topics again, Breyer likely believes — as suggested in his comments to CNN — that he’s in a better position than anyone else to help protect liberal interests on those issues.

Even if Breyer is right, though, it still leaves him — and the country — dependent on three gambles on his part breaking his way.

The first is that the likely ability of Biden to appoint his successor is hanging by a thread in the Senate. Despite his pressing of a nonpoliticized vision of a judiciary, Breyer doesn’t exist in a vacuum. What does he do if the Democrats lose the Senate for some reason in the coming term? Does he then plan to stay until the next time a Democratic president has a Democratic Senate to confirm his successor — and will his health allow him to do so?

Secondly, and less discussed: Can Stephen Breyer on his own do anything to stop the conservatives when they want to act? Despite his successful majority opinion in the 7-2 decision saving the Affordable Care Act from a truly fringe challenge, he was not able to stop the conservatives from taking their hammer to voting rights, donor disclosure laws, or labor organizing during the last term.

What makes Breyer think he’ll be more successful with abortion rights than with those major cases this past term, let alone other issues where he found himself in the minority on an even less conservative court in the past? Why would he be better at doing so than a new, younger justice — particularly when Biden has pledged that his first nominee to the Supreme Court will be a Black woman?

Then, there’s the final — and perhaps most fundamental — gamble: What about democracy? All of this is happening, of course, in the context of a nation where one party — the Republican Party — won’t even acknowledge the need to address the issues that led to the Capitol insurrection aimed at overturning the results of the 2020 election. Voting rights are meanwhile being curtailed and redistricting efforts will regularly be aimed at creating an even more lopsided backdrop for our elections.

Will Breyer’s insistence on an imagined institutional neutrality ultimately harm the nation that those institutions are aimed to protect? Lithwick is right that there are paths for liberals to pursue beyond criticizing Breyer, from court expansion to term limits and beyond (even if they are uphill battles).

When it comes to Justice Stephen Breyer himself, however, he is making the decision — for himself, the court and the nation — that he’s willing to take his gamble if and while those other paths are pursued.