What is Breyer going to do?
As the Supreme Court nears the end of its 2020-2021 term, many court-watchers ask that question with an urgency that equals or even surpasses their eagerness for the results of several high-visibility cases due to be announced in the next couple of weeks.
With good reason. For “Breyer” in that question is Associate Justice Stephen Breyer, and the question is whether Breyer, now 82 and with nearly 27 years on the Supreme Court, will announce his retirement soon after the term ends. And while choosing justices has always been serious business, the process of late has become the focus of intense — sometimes, indeed, overwrought — attention.
There are several reasons for that. But certainly at the top of the list is the fact that, starting in the 1960s and continuing today, America’s version of the cultural revolution has obliged the Supreme Court (willingly, for the most part) to grapple with a seemingly endless stream of explosive questions of high sensitivity generally lumped together under the heading “social issues.”
As this is written, for example, the court is expected shortly to announce its decision in a case from Philadelphia pitting LGBTQ claims against religious liberty in the foster care field (Fulton v. Philadelphia). And in the new term that begins next October, it will address the abortion issue in a case from Mississippi (Dobbs v. Jackson Women’s Health Organization) that pro-lifers hope — and pro-choicers fear — will lead to weakening if not outright reversing Roe v. Wade, the 1973 decision that legalized abortion.
As a member of the Supreme Court, Breyer is a pro-choice liberal. If he retires now, President Biden will name another pro-choice liberal to succeed him. That will not alter the current ideological makeup of the court — six conservatives, three liberals. But the new justice most likely will be of an age to enjoy another two or three decades of active service on the court.
Despite Breyer’s liberal credentials, it’s liberals who lately have been publicly urging him to step down. In doing that, they point to the horrible example of Ruth Bader Ginsburg who, they say, ought to have retired at a time when President Barack Obama could name her successor.
Instead, Ginsburg tarnished her image as a liberal icon by stubbornly remaining on the court in failing health until her death last September at the age of 87 — at which point President Donald Trump chose conservative Amy Coney Barrett to succeed her.
The liberals want no repetition of that. Quit now, they urge Breyer, with Biden in the White House and a slim Democratic majority in the Senate.
A widely noted address by Breyer earlier this year at Harvard Law School may shed some light on what he decides to do. In remarks entitled “The Authority of the Court and the Peril of Politics,” he argued that the court’s authority rests upon the perception that it is not a political body but one guided by the application of principles of law to particular cases.
“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” he said.
Breyer’s special target then was the renewed liberal interest in “court packing” — increasing the number of justices with an eye to securing decisions the liberals favor politically. Pressing a justice to retire in the interests of a partisan agenda looks like a comparably bad idea.