Justice Breyer’s retirement showcases Biden’s limited ability to reshape Supreme Court

Last week, Justice Stephen Breyer announced his retirement from the Supreme Court after 28 years of service. Breyer’s retirement follows a long and enviable career that included high-level positions at the Department of Justice, Congress, Harvard Law School and the First Circuit Court of Appeals. His judicial philosophy tended to be wonkier than those of his peers, focusing on technocratic concepts and greater democratic principles, rather than broad-based rights or historical interpretations. But the irony of Breyer’s retirement is that it showcases the normalcy of the status quo in an age of deep partisan rancor over the Supreme Court.

The current ideological composition of the Supreme Court is six conservatives and three liberals. This directly correlates with the ideologies of the presidents who nominated the respective justices. Liberals remain livid by the Senate Republican refusal to even hold a confirmation hearing for then-Chief Judge Merrick Garland upon the death of Justice Antonin Scalia in 2016, which resulted in the first of three transformative judicial appointments for President Trump during his four years in office. However, even assuming that the evenly divided Senate were to confirm President Biden’s nominee, the ideological composition of the Court would stay 6-3 and is likely to remain conservative-dominated for years to come. 

Since Breyer’s ascension to the Supreme Court in 1994, justices’ average age at departure has been 81. Using this as the best approximation for the age at which a justice retires, the next expected vacancy would not be until 2029, at which point, Justice Clarence Thomas would depart as the longest-serving justice in American history.

Even allowing President Biden one premature departure during the interim, he would at best be able to bring the Court to a 5-4 balance, capable of moderating many of its decisions but not tilting them in favor of Biden’s presumed values. The balance of power on the Supreme Court therefore does not favor Biden playing a strong role in reshaping that institution, nor does the milquetoast outcome of his Supreme Court commission’s report. 

But Biden may nonetheless have an impactful role on the judiciary through his lower court nominations. He has already nominated more judges in his first year in office than any other president over the past 40 years and had a higher number of confirmed judges than any of his predecessors during that same period. Most of President Biden’s nominees have been women and people of color. The successful confirmation of these nominees has tilted the ideological balance away from a majority of appellate courts consisting of a majority of Republican-nominated judges, before even accounting for the effect of future confirmations on the ideological composition of the circuit courts. 

Yet, with the Senate evenly divided, the possibility of an anti-incumbent midterm election, Republican intransigence on judges, low favorability ratings and a limited number of appellate vacancies, Biden’s ability to maintain his first-year judicial nominations momentum may be in doubt outside of district court seats. 

The very real prospect that President Biden may not have an influential role on the higher courts is ironic given his impact on the Supreme Court during his eight years as chairman of the Senate Judiciary Committee. During his 1987-1995 tenure, Chairman Biden oversaw the hearings of six Supreme Court nominees — Robert Bork, Anthony Kennedy, David Souter, Clarence Thomas, Ruth Bader Ginsburg and Stephen Breyer.

All of them were confirmed under Biden’s chairmanship, except for Bork. The Bork and Thomas nominations led to the so-called “Biden Rule” years later, which was used to prevent President Obama from appointing Garland. 

Yet, all told, Joe Biden chaired more successful Supreme Court confirmation hearings than any senator in recent memory and assumed the presidency with more Supreme Court confirmation experience than any previous president, including William Howard Taft, who served as chief justice of the Supreme Court for eight years after leaving the White House. Even President Martin Van Buren, the only other commander in chief to have previously served as Senate Judiciary chairman, lacked as much experience with Supreme Court nominations as President Biden now possesses.

The fact that one of the most impactful senators in American history on the issue of Supreme Court confirmations seems destined to have such limited influence on the Supreme Court during his presidency is ironic and betrays the status quo bias of our constitutional system. With its new “conservative supermajority,” the Supreme Court will likely take up weighty issues that could undermine President Biden’s agenda and redefine key aspects of our society in the coming years.

Under such circumstances, the burden of influencing the Court’s thinking for those who disagree with its conservative leaning will most likely fall upon the litigators, lower court judges and the Court’s liberal wing as a bloc, rather than any associate justice that President Biden appoints to the Court in the coming months or years.

Harry William Baumgarten served as legislative director and counsel to members of the House of Representatives. He is also a member of the Supreme Court Bar whose writings have been featured in leading domestic and international publications.