After Breyer’s exit, we need another public health pragmatist for SCOTUS

The rumor mill in Washington is swirling over President Biden’s pick to be the next U.S. Supreme Court nominee following the announcement of Justice Stephen Breyer’s retirement from the bench. 

A moderate, Breyer understood how the highest court in the land could positively impact public health across America. The country would be served well if the next nominee shares a similar appreciation for the power the court has to protect evidence-based equitable health policies that benefit all Americans.

Breyer was a level-headed pragmatist — one who delivered sober, reasonable decisions on matters with major public health implications. He wrote the majority opinion when the court rejected the Republican effort to challenge the Affordable Care Act. And he opposed ending the COVID-19 moratorium on landlord evictions imposed by the U.S. Centers for Disease Control and Prevention, claiming established court procedures weren’t being followed.

 He made headlines by authoring the dissenting view, alongside Justices Sonia Sotomayor and Elena Kagan, when the court blocked the Biden administration from requiring large companies to mandate employee COVID-19 testing and verify their vaccination status. 

“As disease and death continue to mount,” he wrote, “this Court tells the agency that it cannot respond in the most effective way possible.” He said the decision undermined federal officials from being able to “protect American workers from grave danger.”

But perhaps one of his most enduring legacies will be his commitment to protect the court, and its reputation, from political influence. Nowhere was that on fuller display than on the issue of abortion. Roughly 50 years ago, the court decided women possess this right until the moment the fetus is able to live beyond the womb, as established in Roe v. Wade. Recently, during oral arguments over the 15-week abortion ban in Mississippi, Breyer addressed his colleagues and sent a clear message that Supreme Court justices would be viewed as politicians if they voted to overturn the precedent.

There are many issues coming before the court where the country will need the same measured thinking toward public health policies. Abortion, gun control and disability discrimination are among those in the near term. And future decisions by the court will likely address issues surrounding environmental health, social justice and equitable access to care.

Biden has promised his nominee to replace Breyer will be a woman of color. Whoever she is, the country needs someone with a demonstrated ability to understand how legal decisions can shape and advance the cause of public health. The three frontrunners (D.C. Circuit U.S. Court of Appeals Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger, and federal judge J. Michelle Childs) have accomplished records in this regard, shown by their thoughtful approach in addressing past environmental public health decisions. Notably, many environmental groups have withheld their endorsement of any one of these potential candidates, as all have shown proficiency in drafting legal opinions that prioritize the importance of advancing environmental health.

Although Biden’s nominee won’t shift the court’s ideological makeup, all signs point to the possibility she will be a strong voice on public health before the court. Yet, as the majority party-line decision that rejected Biden’s testing and vaccine mandate makes clear, the political ideologies of Supreme Court justices continue to influence their legal decisions, even on matters where American lives are at stake.

With the Supreme Court’s approval ratings at a new low, justices can ill afford to be seen as operatives of the presidential parties that nominated them to the bench. Members of both parties in Congress have expressed the same sentiment. Sen. Richard Blumenthal (D-Conn) noted the rise in political-based decisions by the court “is potentially devastating” to its credibility. Sen. Lisa Murkowski (R-Alaska) said recently when the public starts to question the court’s independence, “they’ve got a problem.”

Supreme Court justices must stand for decisions that prioritize the health and wellbeing of all Americans — even when those decisions conflict with their own political views. It’s the only way to maintain public trust in the institution, something Breyer once called a “tremendous asset” for the nation.  

We deserve a nominee with the same conviction to protect public health, the same passion to rise above the political fray to restore trust in the court, and the same respect for the rule of law as Breyer. If she embodies these qualities, perhaps her example will set a new standard for her colleagues to follow.

Lyndon Haviland, DrPH, MPH, is a distinguished scholar at the CUNY School of Public Health and Health Policy