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.
As 2021 comes to an end, the conservative majority of the Supreme Court has allowed an anti-abortion law that is, for now, flagrantly unconstitutional to remain in effect in Texas since September. The justices earlier in the summer stopped enforcement of the pandemic-related federal eviction moratorium. And now, the justices agreed to start off 2022 by considering whether the Biden administration’s employer “vaccine-or-test” mandate and its vaccine mandate for health care workers are permitted.
The five most conservative justices have become emboldened — both on and off the bench.
The five most conservative justices have become emboldened — both on and off the bench, and at times leaving Chief Justice John Roberts behind. In addition to the cases this term, several conservative justices took time out of their schedules to criticize the reporting on and criticism of the Supreme Court and some of its practices. In a speech at the University of Notre Dame, Justice Samuel Alito went after critiques of the court’s so-called “shadow docket” — decisions issued without full briefing or argument that have increased in prevalence and, arguably, importance in recent years — by calling them “sill[y]” and “annoying” and concluding that they don’t amount to “serious criticism.”
During that time, Justice Stephen Breyer was talking, too, promoting his book centered on his claim that the court is, for the most part, an apolitical body and must continue to be so. That book, “The Authority of the Court and the Perils of Politics,” appears, at times, to have been written in a different era than the one in which we live.
Breyer, 83, has been either a federal appellate judge or a Supreme Court justice for 41 years, nearly half his life. When it became clear that he would not be retiring at the end of the Supreme Court’s last term, Breyer faced a wave of criticism that led to, so far as we know, nothing. And yet, the pressure remains, and it is likely to grow as 2021 turns to 2022.
Although Breyer has described calls for him to retire as political, the reality — a disappointing one to liberals — is that his retirement now wouldn’t be political in the way people talk about it. His replacement wouldn’t change the balance of the Supreme Court; if he were to retire now, there would still be a 6-3 conservative majority.
But such a retirement would have the potential to change the dynamic on the court; that is to bring a new, younger voice to the court’s discussions. And these discussions are not, Breyer acknowledges, just about past actions. They are also about the future of our country.
Although he writes of his understanding of politics by referencing his time as a Senate staffer, he last worked in the Senate when Jimmy Carter was president and Pete Buttigieg hadn’t yet been born.
Democrats remember Republicans roadblocking Merrick Garland’s Supreme Court nomination fast-tracking Justice Amy Coney Barrett’s.
Meanwhile, the Senate that would have to confirm any successor to Breyer is split 50-50 with Vice President Kamala Harris serving as the tie-breaking vote. The press for Breyer to retire is, in large part, based on that. Democrats remember Republicans roadblocking Merrick Garland’s Supreme Court nomination after Justice Antonin Scalia died in February 2016 and those same Republicans fast-tracking Amy Coney Barrett’s Supreme Court nomination after Justice Ruth Bader Ginsburg died in September 2020.
Some Republicans have already made clear that if the Senate majority changes next year and a spot becomes open on the Supreme Court, then they won’t vote to confirm a successor. And, if past performance is any prediction of future behavior, Sen. Mitch McConnell — were he to become the Senate’s majority leader once more — is unlikely to even proceed with consideration of a nominee.
Nonetheless, Breyer has made no statements about any planned retirement. To the contrary, any statements have been to disclaim any decision, thus far, about when he will retire.
All of which leads to a simple point: The Supreme Court is a 6-3 conservative, increasingly aggressive, court. A new, younger voice from the left joining the court is essential to continuing the work of democracy to which Breyer claims to be so committed.
Breyer provides a handful of suggestions in his latest book about what the justices can do to maintain America’s belief in the court’s authority. The first is, “Just Do The Job.” It is an argument against ego, with Breyer writing that justices should “not seek or expect popularity.” He later writes of the importance of compromise and deliberation, as well as the “broader perspective” of the Constitution, the rule of law, and, in effect, the job of being a Supreme Court justice. Although he certainly didn’t say so, one could easily read Breyer’s suggestions as a reason for a justice to retire when it’s best for the court and the rule of law.
Breyer also writes persuasively about the Constitution’s seeking of a “workable democracy,” and the court’s conservatives have made increasingly clear this fall that an even more unbalanced court would almost certainly make maintaining a workable democracy more difficult. In this situation, Breyer retiring now could be his best way of doing the job — even as he perceives it.