Democrats have an incredibly fragile 50-seat majority in the Senate, a reality that is fueling calls for Supreme Court Justice Stephen Breyer to retire this year so President Joe Biden can appoint his replacement.
As Sen. Patrick Leahy’s (D-Vt.) health scare showed, Democrats may not have until the fall of 2022 to enact their agenda and even the scales of the federal judiciary, which was reshaped by conservatives under President Donald Trump. The party is one unforeseen tragedy away from potentially losing its majority, especially if a GOP governor gets to appoint a replacement for a Democrat who is no longer able to serve in office.
That’s why some progressives argue that Breyer, who turns 83 this year, should retire from his lifetime position this summer to give Democrats a chance to fill his seat. Replacing Breyer with a Democrat-appointed justice may not change the balance of the court, which is currently tilted 6-3 toward conservatives, but it would at least preserve the status quo.
Recent Supreme Court history also weighs heavily in the minds of some Democrats. Though she became a liberal icon, the late Supreme Court Justice Ruth Bader Ginsburg decided against retiring under former President Barack Obama, for example. Justice Amy Coney Barrett, a Trump-appointed social conservative, now holds her seat.
“If Justice Breyer fails to step down at the end of this term, it is likely to set off a wave of concern from people who are right now biting their tongue on the expectation he will do the right thing on his own,” Brian Fallon, the executive director of Demand Justice, a progressive advocacy group, told HuffPost in a statement.
“With all due respect to Justice Breyer, I don’t think he is owed our deference here,” he added. “The decision about whether or not to remain on the Court is not just about whether he likes his job. The decision concerns millions of Americans whose personal fates will be impacted by the future composition of the Court.”
Breyer was nominated to the court by President Bill Clinton nearly 30 years ago. A reliable vote on the court’s liberal wing, he’s helped deliver landmark rulings in favor of LGBTQ rights and reproductive rights, among others.
The associate justice has given few hints about his future, but he does have an upcoming book in which he addresses the danger of politicizing the Supreme Court ― in what could be a hint about how he views public pressure campaigns like those calling on him to retire. In the book, titled “The Authority of the Court and the Peril of Politics,” Breyer also explicitly warns against the idea of court-packing, which has become more popular within the Democratic Party in recent years.
Democratic senators who spoke with HuffPost this week were extremely cautious about the subject, maintaining that a Supreme Court justice with a lifetime term has a right to decide when to go.
“I don’t feel like an Article I branch should tell an Article III judge with lifetime tenure what he should do,” said Sen. Tim Kaine (Va.), the Democratic vice presidential nominee in 2016.
“I don’t have any opinion on that. That’s up to him,” Sen. Sherrod Brown (Ohio) said.
Sen. Bernie Sanders (I-Vt.) simply declined to comment.
Only Sen. Richard Blumenthal (Conn.), who has previously weighed in on the subject, was willing to nudge Breyer, albeit very gingerly.
“I wouldn’t presume to tell a Supreme Court justice to retire but he, more than anyone, knows the political reality,” Blumenthal said. “He’s worked here in the Senate. He knows the risk of staying on the court. He’s been a jurist of extraordinary distinction and intellect. So he could well leave now at the highest point of his career without any hint of criticism.”
Publicly urging a member of the court to retire is still seen as unseemly and taboo on Capitol Hill, especially when many senators are of similar age as the justices themselves. Such overtures are often made quietly through backchannels, like the Trump White House did with former Justice Anthony Kennedy, who stepped down in 2018 at the age of 82.
“It just strikes me as pretty disrespectful. It’s not like whoever Biden would nominate would change the balance of the court much,” Sen. John Cornyn (R-Texas) told HuffPost.
The Senate Judiciary Committee this week advanced Biden’s nomination of a potential Breyer successor who is backed by progressives, Judge Ketanji Brown Jackson, to the D.C. Circuit Court of Appeals. The court has been a stepping stone for most Supreme Court justices.
Biden pledged during the presidential campaign to nominate a Black woman to the Supreme Court if he gets a chance to fill a vacancy. Jackson, 50, is among the most prominent Black women in the federal judiciary.