Breyer’s retirement gives Biden, and progressives, a high court appointment

When it comes to confirming Supreme Court nominees, senators of both parties bloviate about precedents as if they were rigid and binding, rather than malleable and hortatory. There is really only one precedent: You must get to 51 votes. That explains the sudden but not unexpected news that Justice Stephen Breyer will retire at the end of the court’s ongoing term.

Justice Breyer has been the target of intense pressure by progressive groups, clamoring for him to step down. Two things about that. 

First, activists can turn up the heat, but no one can force a Supreme Court justice to do anything. Constitutionally, the judiciary is the non-political federal branch. The Framers deliberately insulated judges from politics: They are appointed, not elected; they are life-tenured; their compensation cannot be reduced. The point is to enable the judge to do justice without fear or repercussions, to ignore political pressure. This arrangement has a residual benefit: The timing of a justice’s retirement is entirely up to the justice. Others can try to pressure; no one else gets to decide.

Second, their histrionics notwithstanding, Justice Breyer knows that progressives are not dissatisfied with him. To the contrary, he has been a highly effective progressive jurist, a reliable vote for the left in major rulings throughout his 27 years on the high court. Progressives have been agitating only because Breyer is 83 and they went code-red with President Biden’s election.

No one would be surprised if Biden were a one-term president. Plus, he took office after progressives experienced the confirmation of three conservative justices in the preceding four years, when Republicans narrowly controlled the Senate and an unpopular Republican — who unsurprisingly turned out to be a one-term president — was in the White House.

Progressives would love for Breyer to live until he’s 183, to remain as sound of mind as he clearly is today, and to keep doing exactly what he has been doing for decades. But that is impossible. At some point, all of us must come to grips with our mortality. Besides being no exception, Justice Breyer is a very smart guy. While he loves his job as much as he ever has, he is not unsympathetic to the thinking that catalyzes calls for him to step down.

Breyer’s longest alliance on the court was with his fellow Clinton appointee, Justice Ruth Bader Ginsburg. Through significant health challenges, Justice Ginsburg soldiered on at the court. She loved the work, and proved deaf to calls for her to step down during the Obama years — particularly those six years when Democrats controlled the Senate (2009-15) and Barack Obama was sufficiently popular to win reelection to the White House (in 2012). Again, no one can force a Supreme Court justice to do anything. But when Ginsburg finally succumbed in 2020 at 87, Democrats no longer could get to 51.

Republicans controlled the Senate. The political ground beneath them was cracking: President Trump, their fellow Republican, was down in the polls, poised not just to lose an election but to cost Republicans their Senate majority. The situation dramatically narrowed their window of opportunity. When Ginsburg’s powerful court seat became vacant, though, they could still get to 51. Constitutionally, nothing more was necessary. They were thus able to shift the court’s trajectory away from Breyer’s preferred progressive direction.

It wasn’t the first time in recent memory that this happened. Progressives could not help but be mindful of the prior presidential-election year, 2016, when Justice Antonin Scalia suddenly died. Justice Scalia was a cherished colleague of Justice Breyer’s for 20 years, but a counterpart philosophically (indeed, in coming months, it will be time to revisit some of the sparkling debates the pair treated us to in their spare time).

The president gets to nominate Supreme Court justices, so in theory Scalia’s passing gave Obama an opportunity to alter the court’s trajectory in Breyer’s ideological favor. But Obama was near the end of his term, his policies had become unpopular, and the aforementioned six years of Democratic dominance on both ends of Pennsylvania Avenue had lapsed. Democrats no longer could get to 51.

The Constitution empowered Senate Republicans, with the whip hand of their majority, to decline to consent to Obama’s nominee. Trump’s ensuing tenure was short, but those Senate Republicans were able to get to 51 — not just once but three times. How could Breyer not be  influenced deeply by experiencing the court’s lurch away from his jurisprudence?

Not only did Breyer have a front-row view of what his fellow progressives regard as the lost chance to convert the Scalia and Ginsburg openings into a stable, progressive court majority. He also watched as Justice Anthony Kennedy — a Republican, yes, but another friend and colleague with whom Breyer served on the court for 22 years — seized the opportunity to retire at 82 (close to the age Breyer is now) when a president of his own party was in a position to appoint as his replacement a protégé: (now) Justice Brett Kavanaugh, a former Kennedy clerk. 

Justice Breyer is retiring because he is 83, and because Democrats, by the skin of their teeth, can get to 51 — for now, but probably not for long. If he hung in until after the midterm elections, Republicans very well might retake the Senate. Biden then would need to negotiate with them. Progressives don’t want a justice Republicans would find mutually agreeable; they want a Breyer on whom they can rely for the next three decades. 

Breyer wants that, too. And now, like his friend Justice Kennedy, he has given a president of his own party a clear path to choose a new justice in the retiring justice’s mold. Oh, and did I mention that the early favorite, D.C. Circuit Court Judge Ketanji Brown Jackson, who conveniently checks Biden’s African American woman box, just happens to be a former Breyer clerk?

Former federal prosecutor Andrew C. McCarthy is a senior fellow at National Review Institute, a contributing editor at National Review, a Fox News contributor and the author of several books, including “Willful Blindness: A Memoir of the Jihad.” Follow him on Twitter @AndrewCMcCarthy.