Lawyers and politicos around the country remember exactly where they were when they heard that Justice Antonin Scalia and that Justice Ruth Bader Ginsberg had died. But they likely have no memory of where they were when Justice Anthony Kennedy announced he would retire. Hanging up your robes after a lifetime of service to the law, knowing that the President will appoint a like-minded successor, lacks a certain drama. But the decision is no less consequential to the future of our country, leading many on the left to call for Justice Stephen Breyer to retire this year—so that a successor can be confirmed before the midterm elections.
The Supreme Court’s nine seats are currently filled by three Justices appointed by Democrat presidents and six Justices appointed by Republican presidents. But the Court cannot fairly be described as a 6-3 ideological split. The Chief Justice, a George W. Bush appointee, increasingly articulates a middle-ground approach, and it’s too early to tell whether Justice Kavanaugh and Justice Barrett will gravitate toward this way of thinking. If the Court can more accurately be described as a 3-3-3 ideological split, rather than 6-3, Democrats’ maintaining their block of three is vital to pursuing liberal policies from the bench.
Justice Breyer is 82, and has served the Supreme Court for 27 years. Justice Kennedy was 81 when he announced his retirement; Justice David Souter was 69; Justice Sandra Day O’Connor was 76; and Justice John Paul Stevens was 90. Justice Breyer is notable for his affinity for multi-factor balancing tests, his commitment to a “living” constitution, and his somewhat elaborate wind-ups while questioning Supreme Court litigants. He seems to profoundly love his job, in spite of Demand Justice’s enormous rolling billboard parked outside of the Supreme Court telling him to leave.
Here's a photo of Demand Justice's billboard truck outside of Union Station. pic.twitter.com/2N1Md9WSiV— Jennifer Bendery (@jbendery) April 9, 2021
Recently, politicos have attempted to read the tea leaves. Justice Breyer has hired clerks and the White House seems to have ramped down the retirement pressure—so maybe he’s staying. But Justice Breyer just witnessed Justice Ginsberg’s seat be filled by President Trump and the Democrats’ Senate majority is currently reed thin—so maybe he’ll retire.
Another serious factor to consider is whether a confirmable replacement stands ready. President Biden promised to put a Black woman on the Court, and one strong contender seems to be Judge Kentanji Brown Jackson, currently nominated for the D.C. Circuit. If Justice Breyer retires after this Term, i.e. this summer, Judge Jackson may still be serving on the District Court, or may not have decided a case on the D.C. Circuit. Although this is not a deal breaker, many might describe it as less than ideal.
Frustrated, many on the Left have resorted to plans to pack the Court, meaning that they want to expand the number of justices on the Court in order to create a majority of left-wing judicial activists. Feeling this pressure, President Biden on April 9 created a commission to evaluate “reform” proposals. Fortunately for the Republic, the American people are likely to see through this ruse. Flipping the Supreme Court to fit the whim of a majority power would entirely eliminate the Court’s legitimacy; that is, the Court would speak and no one would listen. The last time a president tried to pack the Court, there was nothing stopping the Democrats but a commitment to the success of our nation—and that commitment won. President Franklin D. Roosevelt faced a libertarian-leaning Court with little patience for his big-government proposals and had zero Supreme Court vacancies his first term. FDR proposed appointing a new justice for every justice over 70, and, despite enormous super-majorities in both the Senate and the House, the Democrats declined to give FDR dictator-like power. This patience for democracy preserved the rule of law. But FDR got his big government policies too, which was only possible because, when challenged, the policies were upheld by a Court with authority.
I don’t recall an anti-Justice Kennedy billboard parade asking for his job. Instead of jeers and court-packing proposals, those desperate for an open seat may want to consider the good, old-fashioned “let him think it was his idea” approach.