Breyer's Exit Nods to Politics of the Supreme Court He Decried

(Bloomberg) -- After a career trying to keep the U.S. Supreme Court above politics, Justice Stephen Breyer’s retirement underscores just how central the court now is to the U.S. political wars.

Breyer’s White House announcement Thursday was timed perfectly to give President Joe Biden a needed chance to change the national conversation and reinforce the court’s beleaguered liberal wing.

It comes amid a seismic Supreme Court shift driven by a Republican agenda. The court now has a 6-3 conservative majority that could be poised to overturn the constitutional right to abortion, abolish the use of race in university admissions and slash the Environmental Protection Agency’s power to combat climate change.

In books and interviews, Breyer spent much of the past quarter-century insisting that the justices aren’t simply “junior league politicians.” In a speech last year, he said that “it is wrong to think of the court as another political institution.”

But as with many of his predecessors, Breyer’s aversion to politics didn’t keep him from taking advantage of a window of Democratic control of the White House and Senate. That control means Biden, who has vowed to appoint the court’s first Black woman, can get his nominee confirmed without any Republican support. Democrats hold the 50-50 Senate because of Vice President Kamala Harris’ tie-breaking vote.

Breyer “sees that this is a super-majority conservative court that is very interested in aggressively moving the law in conservative directions,” said Leah Litman, a constitutional law professor at the University of Michigan. “He also sees that there is a chance that President Biden might not be able to confirm a justice to the Supreme Court if Republicans win control of the Senate in the midterms.”

Democratic Roots

The 83-year-old Breyer has been a pragmatist and consensus-builder who generally votes with the court’s liberals in ideologically divisive cases. A former counsel to Democratic Senator Ted Kennedy of Massachusetts, he was appointed to the court in 1994 by Democratic President Bill Clinton.

In the White House’s Roosevelt Room on Thursday, Breyer basked in adulation from Biden, whose career has intersected repeatedly with that of the future justice since the 1970s. Biden called Breyer “a beacon of wisdom on our Constitution and what it means” and promised to choose a successor “worthy of Justice Breyer’s legacy of excellence and decency.”

Speaking after Biden, Breyer pulled a copy of the Constitution from his pocket and marveled at its power to command respect from people with sharp disagreements. “The people have come to accept this Constitution, and they’ve come to accept the importance of the rule of law,” he said.

The announcement comes as Biden battles slumping approval ratings, driven by rising inflation, a resurgent pandemic and his party’s inability to enact its sweeping economic agenda. Biden said he plans to select a nominee by the end of February, guaranteeing the court’s future will stay in the news in the coming weeks and months. 

Breyer’s timing extends what has become accepted practice. The last six justices to retire -- Anthony Kennedy, John Paul Stevens, David Souter, Sandra Day O’Connor, Harry Blackmun and Byron White -- did so with a president all but certain to nominate a largely like-minded successor.

The last time a justice retired with an ideological opposite in the White House was 1991, when an ailing Thurgood Marshall stepped down and opened a seat for President George H.W. Bush to fill. The Republican Bush nominated Clarence Thomas, a move that shifted the court to the right and still reverberates today.

Ginsburg Contrast

Breyer’s retirement stands in contrast to Justice Ruth Bader Ginsburg’s decision to stay on the court throughout Barack Obama’s presidency even as she battled cancer and other health issues. The liberal Ginsburg died in 2020, allowing Republican Donald Trump to replace her with Justice Amy Coney Barrett.

Walter Dellinger, who served as Clinton’s top Supreme Court lawyer, said he once asked Chief Justice William Rehnquist in a public forum whether a justice could appropriately consider a sitting president’s party when deciding whether to step down.

“His response was, ‘Of course, it’s not inappropriate. Deciding when to step down is not a judicial act,’” Dellinger said. “By that he meant that judges should be nonpartisan in all of their judicial actions, but deciding when to no longer be a justice is not a judicial act.”

In a July 2021 Marquette Law School poll, 78% of people surveyed said justices, when deciding when to retire, shouldn’t consider which party controls the presidency and Senate. The numbers shifted somewhat when people were first told about Breyer’s potential retirement, with 60% then saying justices shouldn’t consider party control.

One person touting the nonpartisan features of the federal judiciary Thursday was Senator Mitch McConnell of Kentucky, the Republican leader who engineered the conservative takeover of the Supreme Court. 

McConnell led a Republican blockade of Obama nominee Merrick Garland in 2016 and then ensured a rushed confirmation of Barrett just before the 2020 election. He hailed Breyer’s “commitment to the importance of a nonpartisan, non-politicized judiciary,” citing his criticism of proposals to offset conservative gains on the Supreme Court by adding seats.

McConnell also said the 50-50 Senate split meant Biden should “govern from the middle” with his selection. 

“The president must not outsource this important decision to the radical left,” he said. “The American people deserve a nominee with demonstrated reverence for the written text of our laws and our Constitution.”

©2022 Bloomberg L.P.