Supreme Court Justice Stephen Breyer announced his decision to retire from the court at the end of its 2021-2022 term, setting the path for President Joe Biden to appoint his replacement.
Biden has affirmed a promise made during his 2020 presidential campaign to appoint the first African American woman to the Supreme Court. His nomination is due at the end of February.
Of the names that have been floated for the replacement, the most prominent is Judge Ketanji Brown Jackson, of the U.S. Court of Appeals for the Washington D.C. Circuit.
Jackson was confirmed to the Circuit Court last June with 53 senators in favor, including all Democrats, and Republicans Susan Collins, Lindsey Graham and Lisa Murkowski.
Given this, it seems likely Jackson would be able to make it through a vote in the Senate, as she would only need 50 votes in favor, with Vice President Kamala Harris being able to cast a 51st tie-breaking vote.
If appointed, Jackson would land solidly on the liberal wing of the court, as seen by rulings during her time as a judge of the U.S. District Court for Washington D.C.
In 2019, Jackson filed an injunction to halt the expansion of the Trump administration’s fast-track deportation policy, which would have allowed the federal government to deport any undocumented immigrant while bypassing immigration judges.
However, Jackson, or whoever is eventually confirmed to the seat, will not shift the partisan balance of the court, as Breyer was one of three of the court’s liberal wing.
Breyer’s retirement and replacement is significant for its circumstance, signaling Democratic willingness to play hardball with the Supreme Court after nearly a decade of judiciary battles under the Obama and Trump administrations.
This modern fight for the judiciary first started during the Obama administration, when Republicans in the Senate stonewalled appointees to a vacant seat on the Court of Appeals. This led to the late Harry Reid, then the Democratic majority leader, to invoke the nuclear option: getting rid of the filibuster for presidential nominees, with the exception of those to the Supreme Court.
When Obama did have a vacant Supreme Court seat at the end of his term, Senate Republicans held the seat open, refusing to allow Obama to nominate anyone to the spot.
Under the Trump administration, Republican Senate Majority Leader Mitch McConnell invoked the nuclear option once again, this time eliminating the filibuster for Supreme Court nominees.
The most recent fight over the Supreme Court came just prior to the 2020 election, when liberal Justice Ruth Bader Ginsburg died, allowing Trump to appoint a conservative replacement to tilt the balance of power of the court to favor conservatives, 6-3.
Now, after nearly 28 years on the court, Breyer is retiring after an extensive pressure campaign for him to step down.
Ginsburg faced a similar situation during Obama’s second term but ardently refused to retire.
This refusal to recognize the partisan football over the court and retire led to the appointment of a stalwart conservative, Amy Coney Barrett.
Perhaps seeing Ginsburg be replaced by a justice with a judicial philosophy completely opposite hers, combined with the pressure campaign mounted at him, pushed Breyer toward a decision.
Whatever the reason for his retirement, we should be grateful he recognized the court as something bigger than himself.
The concern with tradition and procedure held by liberal justices such as Ginsburg, and those who believed she was right not to retire, was and is completely misplaced.
When the conservative wing of the court is pushing to overturn Roe v. Wade, ending the federal right to an abortion, and its justices still signal opposition to Obergefell v. Hodges, which allowed for the nationwide right to same-sex marriage, there is no time to be concerned with precedent.
Republicans surely aren’t concerned with precedent, given they set a rule that vacant Supreme Court seats should be held open in presidential years, then proceeded to tear that rule down in 2020 when it benefited them.
This hypocrisy shows that conservatives would be willing to do whatever it takes to stack the judicial branch with judges favorable to them, and why shouldn’t they?
The Supreme Court, with its lifetime tenure and ability to strike down policy from the other branches of government, is quite clearly the most powerful political force in the country.
Breyer’s retirement, allowing Biden to place a liberal on the court that could serve for decades, shows that liberals are willing to play hardball with the Supreme Court as well, and it’s all for the better.
After all, Republicans set the field for this battle over the judiciary branch. It’s only fair that Democrats play by the same rules.
