As far as legal earthquakes go, the retirement of a Supreme Court justice rates extremely high on the Richter scale.
Justice Stephen Breyer’s much-anticipated decision to step down from the best legal job in the world comes about as late as it possibly could for Democrats to benefit from it. Since the moment President Joe Biden was announced the winner of the 2020 election, the drumbeat for “Breyer to retire” began. Democrats now control the White House and, by the slimmest of majorities, the Senate, which matters because (now, at least) Supreme Court justices can be confirmed by a simple majority vote in that chamber.
But things could change after this year’s midterm elections. Democrats may lose control of the Senate and with it the ability to confirm anyone Biden nominates to the high court. If the past is prologue, it is possible (and maybe even likely) that a Senate controlled by Republicans, with Kentucky Sen. Mitch McConnell as the likely leader, would simply refuse a hearing to a Biden nominee.
It is possible that a Senate controlled by Republicans would simply refuse a hearing to a Biden nominee.
Let us remember that the tactic of delaying hearings for Supreme Court nominees worked swimmingly for Republicans in the past. When Justice Antonin Scalia died in February 2016, with the presidential election almost a year away, McConnell, then the Senate majority leader, refused to hold a hearing for President Barack Obama’s pick to fill that seat, now-Attorney General Merrick Garland. McConnell’s political hardball paid off in spades. President Donald Trump ultimately nominated Justice Neil Gorsuch to fill that seat. There seems to be little standing in the way of Republicans deciding to use that obstructionist tactic again. That means Democrats need to fill this seat now, before the midterm elections, if they have any hope of filling the seat at all.
And, yes, it is important that Democrats fill this seat, even though doing so will not change the balance of power in the Supreme Court. With Breyer or a replacement named by Biden, it is and will remain a solidly conservative Supreme Court, with six members who are decidedly to the right of the center of legal thought. Therefore, the outcome of many cases that serve as flashpoints in American society — abortion, affirmative action, religious rights — may be exactly the same.
Why, then, is Breyer’s retirement so consequential? First, the difference between a court with a 7-2 conservative split and a 6-3 conservative split is big. Today’s dissent can become tomorrow’s majority opinion, but such a pendulum shift is less likely when two seats need to be flipped instead of three.
Second, the Supreme Court decides many important cases that do not fall as predictably on ideological fault lines. The next person occupying Breyer’s seat could play a key role in those cases where the vote may be 5-4.
Third, with a court of only nine members, the identity and unique ideology of each member matters a great deal. Even if the vote count in many cases doesn’t change with Breyer’s retirement, the way those decisions are written may change. While it may sound minor, it matters a great deal whether decisions on the scope of issues including executive power, legislative authority and individual rights are written broadly or narrowly. A broad decision could have sweeping consequences for decades and fundamentally change the balance of power in our government. More narrow decisions could be more confined to the facts of each particular case. While a justice in the minority may not be able to change the outcome of the vote, their threatened dissent might change the scope of a majority opinion.
On the campaign trail, Biden promised to pick a woman of color to fill a vacancy on the Supreme Court.
Who will follow Breyer? On the campaign trail, Biden promised to pick a woman of color to fill a vacancy on the Supreme Court. There will be enormous pressure on him to follow through with that promise, and he should. It matters that the most powerful court in the world start to look more like the United States.
While Breyer’s retirement won’t change the ideological balance on the court, it will result in someone with another set of life experiences sitting on the most powerful bench in the world. Justices are not computers. We don’t simply input a bunch of data and wait for them to spit out a legal decision. They are people whose worldview and past experiences inform their decisions.
Some may ask why, when the stakes are so high, it took Breyer so long to make this decision. Breyer’s legacy is on the line, and he knows it. He only needs to look at the late Justice Ruth Bader Ginsburg’s life work, which is now being whittled away by the court, to know the dangers of staying too long at the parade.
But being a Supreme Court justice is the most consequential legal job one can possibly obtain. It is difficult to voluntarily give up that level of power and prestige. Breyer’s decision is undoubtedly made with the understanding that a voluntary resignation is the only hope he has to preserve even a sliver of his legacy.
Jessica Levinson is a Loyola Law School professor and MS NOW columnist.