Progressives see Breyer retirement as cold comfort

Progressives greeted the news of Justice Stephen Breyer’s forthcoming retirement with a mixture of relief and frustration — relief at the likelihood his replacement would yield a younger and more diverse liberal bloc on the court, and frustration his departure would do little to impede the steady march of the court’s six-member conservative majority.

The 83-year-old justice’s expected exit clears the way for President Biden to deliver on a campaign pledge to nominate the first Black female Supreme Court justice. And with Democrats in control of the Senate confirmation process, Breyer’s replacement appears unlikely to be derailed en route to joining fellow liberal justices Sonia Sotomayor, 67, and Elena Kagan, 61, on the bench. 

But when it comes to major hot-button issues before the Supreme Court — from abortion restrictions to voting rights — being a liberal justice these days typically means being relegated to a dissenting minority.

“President Biden should quickly nominate a progressive replacement, and the Senate should waste no time confirming her,” said Sarah Lipton-Lubet, director of the progressive group Take Back the Court, which favors expanding the number of justices on the court. 

“But make no mistake: Justice Breyer’s retirement announcement today solves nothing,” she said. “The chance to keep a hyper-conservative stolen court at 6-3 is not a win.”

Breyer’s departure comes as the Supreme Court faces a defining moment, with its approval rating at historic lows, owing in part to a widely held belief that the court is unduly politicized. 

That perception may be reinforced in coming months, with the possibility of rulings that expand gun rights, erode church-state separation and undermine the constitutional right to abortion first recognized in the court’s landmark 1973 decision in Roe v. Wade. 

Breyer’s exit is consistent with the modern trend of Supreme Court justices stepping down when the White House is controlled by the party behind their nomination, a dynamic known as “strategic retirement.”

With Republicans standing a good chance at retaking the Senate in this fall’s midterm elections, many saw a shrinking window of opportunity for Breyer, a Clinton appointee, to retire in time to ensure his replacement would be seated by Democrats. 

Some pointed to the example of the late Justice Ruth Bader Ginsburg as a cautionary tale for Breyer. 

Ginsburg, despite a history of cancer, opted not to retire during Barack Obama’s presidency when Democrats held the Senate for most of his tenure. Instead, Ginsburg’s subsequent death to cancer in fall 2020 paved the way for the confirmation of conservative Justice Amy Coney Barrett, former President Trump’s third Supreme Court nominee, which cemented a 6-3 conservative supermajority.

“I absolutely believe that Justice Breyer wanted to avoid compounding the damage done by Justice Ginsburg’s non-retirement,” said Dan Kobil, a law professor at Capital University. 

“No justice ever wants to give up their power and relevance, especially while they are still as capable as Justice Breyer obviously is,” he said. “However, he has seen the court become more radically conservative than at any point in the past 60 years and I suspect he wanted to act to stem this pernicious tide.”

Barrett’s confirmation in the waning days of Trump’s presidency infuriated Democrats, who in 2016 were denied a hearing for Merrick Garland, then-President Obama’s pick to replace the late Justice Antonin Scalia, when Republicans claimed that election year confirmations are improper — before appearing to contradict their own principle four years later. The move also fueled calls among progressives for a major reform of the Supreme Court. 

Biden deflected the court reform discussion during his 2020 campaign by pledging to establish a study commission. The move succeeded in buying him political cover at a moment of Democratic furor but many on the left remain disappointed that reform efforts have not gained serious traction at the White House. 

Far short of the Supreme Court overhaul they hope to see, the progressive reaction to Breyer’s forthcoming departure was a decidedly mixed batch: one part celebration of the prospect of further diversity on the bench, combined with the cold comfort that the court would be prevented, at least for now, from shifting even further to the right. 

“Confirming Justice Breyer’s successor will not break the Republican chokehold on the Supreme Court and it is not a substitute for structural reform,” said Brian Fallon, director of the progressive group Demand Justice, “but it will break an important barrier and bring needed diversity to the court.”