It is only a partial exaggeration to say that nothing in Stephen Breyer’s career as a justice of the Supreme Court of the United States suits him better than his departure.
Throughout his 28-year tenure, he was known as a pragmatic liberal judge. His written opinions were based on legal and factual facts rather than hype. But he passionately believed that America’s highest court should be an engine of progress above politics.
With a growing likelihood that the Democrats will lose the Senate in November, Breyer announced his retirement well in time for President Joe Biden’s replacement pick to be confirmed. This should avoid a repeat of the ugly stalemate that occurred over the death of Antonin Scalia, but the Republican Senate refused to consider Democrat Barack Obama’s nominee Merrick Garland. After the GOP took over the White House, Majority Leader Mitch McConnell changed the rules to allow Supreme Court confirmations by simple majority.
Breyer’s decision contrasts with Ruth Bader Ginsburg, who resisted calls to resign in 2014 when Democrats were in charge. His death in 2020 allowed Republicans to build a 6-3 conservative majority. Breyer knew it was time to leave. At 83, he’s lived longer and served longer in the field than Ginsburg did in 2014. And while Ginsburg could dream of setting the occasional liberal precedent, he could expect to be stuck on the losing side.
Breyer will be missed, especially by those concerned that the court is becoming too politicized. Although solidly liberal, his style was consensual. He was looking to lower the temperature and was a bit more inclined to vote with the majority than his leftist peers. He sincerely believed that the highest court in the United States should not become a fight between two extremes. Alas, his search for a constructive milieu was increasingly rebuffed by conservatives who were willing to abandon precedent and comity in the pursuit of their agenda.
In her place, Biden promised to appoint the court’s first black female judge. Proposed names include US Court of Appeals Justice Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger. If the Democrats remain united, their candidate should be easily confirmed. We can only hope that the hearings will not undermine the already weak public support for the Court.
The candidate will join a predominantly conservative court that appears determined to overturn decades of precedent on issues including abortion rights, gun control and the use of race in college admissions. Democrats rightly want to counter that with someone with the intellectual clout and energy to articulate a liberal alternative.
They should seriously think about the style. Replacing Breyer cannot shift the ideological balance, but thoughtful and persuasive justice might be able to spur the majority to place more emphasis on precedent and incremental change.
Biden has a choice between two historical precedents. John Marshall Harlan was a lone liberal voice as the 19th century court dramatically restricted civil rights and liberties. The “great dissident” was right, but by then he had been dead for decades.
By contrast, William Brennan married liberal ideology with shrewd negotiating skills. He made deals with more conservative colleagues, pushing their views to the left. This made him one of the most influential judges of the 20th century. A less strident and more overtly consensual candidate would also make it easier to retain the votes of conservative Democratic senators and garner Republican votes. Choosing such a candidate would honor Breyer’s pragmatic decision to step down, as well as his entire career.