Listening to oral arguments in the twin Texas abortion law cases before the Supreme Court, one would hardly think that Justice Stephen Breyer was anything other than his rigorous, measured and sharp-minded self. The litany of challenges to the precedents of Roe v. Wade and Planned Parenthood v. Casey present Breyer with the chance to write opinions and dissents centred around complex legal balancing tests; one of his favourite endeavours.
With his mind and body well intact as well as the opportunity to be the preeminent voice of the liberal wing on this conservative court, why would Breyer step away from the fray? The answer to those who haven’t had their head in the sand since 1973, is pretty obvious.
A Court Politicized
Due to increasing polarisation, Congressional abdication and centralisation of American politics, the Supreme Court is now the pre-eminent decision maker on a number of critical issues. Conservatives realised this after the Roe v. Wade decision which legalised abortion nationwide, and their efforts to shape the court went into overdrive after the failed nomination of Judge Robert Bork and the controversial conformation of Justice Clarence Thomas. Republicans have known for years that a Supreme Court which would halt progressive social goals has been a colossal rallying cry for their base.
Democrats, on the other hand, have come to the party much later, only truly realizing the value of judicial appointments during the failed nomination of now-Attorney General, Merrick Garland in 2016 and in wake of the impactful nominations of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett by President Trump.
Replacing conservative Antonin Scalia, liberal Ruth Bader Ginsburg, and the court’s swing vote, Anthony Kennedy with Trump appointees has already put liberals on the back foot, but there are other political forces which makes replacing Breyer more important for Democrats.
Firstly, retaining and safeguarding the Court’s three liberals is of critical importance, both in terms of sheer numbers and their ability to influence decisions in which two or more of the Court’s conservative Justices are willing to side with them. In addition, Justice Breyer is the oldest member of the court by just under ten years, meaning that his replacement may be the last for some time, further crystallising the importance of shoring up the liberal three in the medium term.
Democrats’ Senate Problem
As American politics settles in to a new post-Obama electoral equilibrium, Democrats have found themselves decimated in rural areas and among white voters without a college degree. This, combined with decreasing levels of ticket-splitting have conspired to give Democrats a structural disadvantage in the Senate.
This means that it is imperative for Democrats that Breyer retire while they control the upper chamber, before their structural disadvantage and potential midterm dissatisfaction with the Biden Presidency has the chance to take the Senate away from them, potentially for many years to come.
In the long run, however, Democrats may see their increasingly strong fortunes in suburban and educated households help to rebalance the Senate as that voter demographic expands at the expense of rural and less educated voters. The likely gap between Justice Breyer’s departure and the next vacancy does give Democrats time to see if their long-term demographic strengths mature well enough to strike back against a decade-and-a-half of conservatives reshaping of the court.
But Democrats have been here before, and if 2020’s election proved nothing else, it is that demographics are not destiny. After 2008’s election, liberal activists and commentators spoke of an enduring majority which would lock the Republicans out of power for a generation. To say that didn’t quite materialise is an understatement and it almost certainly influenced the hubris that saw the left spectacularly lose the 2010s redistricting battle, two midterm elections and which kept Justice Ruth Bader Ginsburg in her seat under President Obama, only to have her seat filled by a Trump nominee a month before 2020’s Presidential election.
Lessons From the Other Side
Republicans have been exceptionally good at selfishly guarding their structural advantages in the face of political headwinds and there is no institution more reflective of that than the Supreme Court. Conservatives are armed with six towering Justices to make up their bloc for at least the next decade, among whom are three young jurists who will occupy seats on the court for the next 20-35 years. This dominance does not form in a vacuum and Democrats need to start playing catch-up as soon as possible. Getting a young, firebrand liberal on the court conserves the foundations of the liberal legal movement on high court and would, at the very least, ensure the continuation of titanic rhetorical battles a la Ginsburg vs. Scalia or Black vs. Frankfurter for the coming decades.
In addition, Democrats would also have the chance to nominate a person from an underrepresented background, which has been a priority in President Biden’s nominations thus far. Furthermore, a nominee from an unrepresented legal background, such as a public defender or civil rights litigator may add a new perspective to the court that has previously been lacking. A more liberal jurist could also be part of consensus building on certain issues such as privacy, substantive due process and law enforcement overreach, where there has been agreement from unlikely allies on the court.
Conclusion
The roadblock in this plan, however, is Justice Breyer himself. Despite being decidedly liberal in judicial philosophy, Breyer detests the politicization of the court and is in no hurry to do what Joe Biden and Chuck Schumer would like him to do in order to shore up the liberal side of the bench.
Justice Breyer must, however, be aware of what yet another young, ambitious and talented conservative justice on the court would do to imperil his legacy on the court, having seen in real time what happened to his friend, Justice Ginsburg’s seat. He will also likely be aware of the electoral currents which make this Democratic Senate majority extremely fragile. With a Democratic White House and Senate, I expect Justice Breyer to quietly retire in order to secure his seat for the coming decades, albeit as quietly as possible and through gritted teeth. The question of when, however, remains critical with a Democratic majority which rests on the Vice-President’s tie braking vote, extremely vulnerable seats and a large number of ageing Senators.