Sen. Amy Klobuchar renewed her call on Sunday for Supreme Court Justice Stephen Breyer to retire “sooner rather than later,” saying that the high court’s decision last week to allow Texas’ extremely restrictive anti-abortion law to go into effect makes the liberal justice’s decision even more urgent.
“I believe, if he is seriously considering retirement ― and he has said he would do it based on not only his own health, but also the future of the court ― if this decision doesn’t cry out for that, I don’t know what does,” the Minnesota Democrat told CNN’s Dana Bash on “State of the Union.”
“I think, if he’s going to do it, sooner rather than later,” she continued. “And again, as you know Dana, that’s not going to change the results necessarily, but at least it doesn’t put it at 7-2.”
The Supreme Court’s conservative majority led a 5-4 ruling on Wednesday night to deny an emergency appeal to abortion providers in Texas that were fighting a law passed by the state’s Republican-controlled legislature and signed by its Republican governor. The law prohibits abortion after six weeks ― a point at which many people are not yet aware they’re pregnant ― with no exception for rape or incest, and includes incentives for private citizens to sue those who assist in getting the procedure by rewarding them with a $10,000 bounty.
In response to the court’s decision, liberal Justices Breyer, Sonia Sotomayor and Elena Kagan wrote blistering dissents calling the Texas law “patently” and “obviously” unconstitutional. Sotomayor said the majority of justices “opted to bury their heads in the sand” when “presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny.”
The Supreme Court’s decision to allow Texas to follow through with the law is the result of the Republican Party’s reliance on unpopular elections and institutions that don’t represent the majority, such as the high court, to achieve its goals. Three of the associate justices who cast the deciding votes ― Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett ― were appointed by former President Donald Trump, who won the White House in 2016 despite losing the popular vote by nearly 3 million.
Barrett, the most recent justice to join the court, replaced the late Justice Ruth Bader Ginsburg, who decided against retiring in her 80s after multiple bouts of cancer at a time when her replacement could have been appointed by then-President Barack Obama in 2013 or 2014. Ginsburg died of cancer just weeks before the 2020 election, making room for Trump to replace her with another opponent of Roe v. Wade. Democrats have called for Breyer’s retirement so that President Joe Biden can be the one to appoint his replacement and the Senate can vote on confirmation while Democrats hold a majority in the chamber.
In late August, Breyer said he was struggling to decide when he should retire and “inevitably” has to think about who might take his place. The 83-year-old told The New York Times that he doesn’t “think I’m going to stay there till I die,” recalling a quote from Antonin Scalia in which the late justice said, “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.”
Klobuchar told CNN on Sunday that she is still supportive of expanding the number of seats on the Supreme Court and that the court’s decision on Texas’ anti-abortion law is just the latest example of why. But the senator stressed that Democrats can best fight the law from gaining traction by codifying Roe v. Wade and abolishing the filibuster in the Senate.
“I do not believe an archaic rule should be used to allow us to put our heads in the sand, to use Justice Sotomayor’s words, to put our heads in the sand and not take action on the important issues, the challenges that are facing our country right now and over the next years,” the senator said. “We just will get nowhere if we keep this filibuster in place.”
House Speaker Nancy Pelosi (D-Calif.) said Thursday that Democrats will vote on the Women’s Health Protection Act, a bill that would codify Roe v. Wade and enshrine abortion rights into federal law. Democrats could also try to expand the court as Klobuchar mentioned, but neither option would pass the Senate given it would need 60 votes of support to bypass a filibuster.
Biden directed the Gender Policy Council and the Office of the White House Counsel to “launch a whole-of-government effort to respond to” the court’s decision, including investigating what the Justice and Health and Human Services departments can do to ensure that people in Texas can access abortions.