Stephen Breyer and the future of the US Supreme Court

TL;DR (4-minute read)

  1. There is currently a 6-3 conservative liberal split in the supreme court.
  2. Senate Minority Leader Mitch McConnell (R – KY) recently said that a republican controlled senate would ensure that any Biden nominee for the supreme court wouldn’t be confirmed in the latter half of his term.
  3. Democrats are urging 82-year-old Justice Stephen Breyer to retire now, while the senate is still democrat controlled, so Biden could confirm a new liberal Justice.
  4. An ad campaign, backed by many liberal organizations, was published in the NY Times and Politico, asking Justice Breyer to retire before midterm elections next year to insure a further conservative swing doesn’t happen.
  5.  Breyer says he has no plans to retire, stating Justices are loyal to the law, not political parties.

To understand the current power struggle that’s playing out in the Supreme Court, let’s first take a look at how a supreme court nominee can get appointed. When any vacancy arises in the Court, the President can then nominate a new judge.The decision gets passed down to the Senate, where a simple majority votes to confirm that judge. 

The current 9 Supreme Court Justices. (ERIN SCHAFF/POOL/AFP via Getty Images)

Last year, with the unfortunate passing of Justice Ruth Bader Ginsburg, President Trump was able to confirm current Justice Amy Coney Barrett only 8 days before the Presidential Election ended because of a Republican controlled Senate. This was President Trump’s 3rd Supreme Court placement during his 4 year term, leaving the 9-Justice court in a 6-3 conservative-to-liberal ideology split. All Supreme Court Justices serve for life, making a nomination and confirmation a powerful political tool that affects policy in years to come. 

Right now, Democrats control the Senate, with President Biden able to nominate a new justice anytime a vacancy opens. There is currently political maneuvering going on both sides of the aisle to exert power over the Supreme Court for the future. 

Key Questions to consider:

  1. What’s currently going on with Justice Stephen Breyer and Mitch McConnell? 
  2. Why are liberal organizations asking Justice Breyer to step down? 

1: What’s currently going on with Justice Stephen Breyer and Mitch McConnell? 

The average age for a Justice is 60, with most terms lasting anywhere from 15 to 25 years. Justice Breyer is on the higher side for both of these averages, currently being the oldest Justice on the Supreme Court, at 82 years old, having served the Court for nearly 3 decades. When he does decide to retire, or in the unfortunate case of his passing, whichever party would have a majority in the senate would most likely be able to confirm a Judge of their political ideology, swinging the political spectrum of the court one way or another. President Biden and the current majority in the Senate are both Democrats, and so a confirmation process for a liberal appointee would happen now is almost guaranteed to go through. Midterm elections for congressional seats are set to happen in November of 2022, likely shuffling the majority split in the Senate. Senate Minority Leader Mitch McConnell (R-KY) said in a recent interview that Republicans, if they had a majority after the elections, would take every effort to block a Supreme Court confirmation in 2023 or 2024.

2: Why are liberal organizations asking Justice Breyer to step down? 

The ad campaign calling for Justice Breyer to retire. (Demand Justice)

Justice Breyer, a traditionally more liberal judge, is one of 3 on the Supreme Court, being nominated by President Clinton in 1994. Democrats, seeing Justice Breyer as a political linchpin stopping an overwhelming conservative majority, are urging him to retire while they still have control over the senate. This led to over a dozen progressive organizations, including Black Lives Matter, Women’s March, and Demand Justice to release an ad campaign calling on him to announce plans to retire. The statement aired in the New York Times and Politico, and while a new liberal judge wouldn’t change the current Conservative – Liberal split of 6-3, they believe it would prevent an ultra-conservative majority from being elected in the near future.

Worries about President Biden being unable to nominate and confirm a justice if Breyer does choose to retire later, are not unfounded, as late last year, with the unfortunate passing of Ruth Bader Ginsburg, President Trump was able to confirm his 3rd conservative supreme court justice in 4 years, Amy Coney Barrett. This is what swung the court into its current 6-3 conservative split. It’s yet to be seen if the ad campaigns will have any effect, with Justice Breyer saying in a lecture at Harvard law in April, “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart… They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

Justice Stephen G Breyer, giving a lecture over Zoom at Harvard Law School in April 2021 (Scalia Lecture, Harvard Law School)


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