hold a razor-thin 50-seat Senate
majority, fueling calls for Supreme Court
Justice Stephen Breyer
to step down this year so that President Joe Biden
can appoint his replacement.
As Sen. Patrick Leahy (D-Vt.)'s health
scare demonstrated, Democrats may not have until the fall of 2022 to enact their agenda and even reshape 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 in office.
That is 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 would not change the court's balance, which is currently 6-3 in favor of conservatives, but it would at least maintain the status quo.
Recent Supreme Court history also weighs heavily on the minds of some Democrats. For example, despite becoming a liberal icon, late Supreme Court Justice Ruth Bader Ginsburg chose not to retire under former President Barack Obama
, leaving her seat to Justice Amy Coney Barrett, a Trump-appointed social conservative.
“If Justice Breyer does not step down at the end of this term, it is likely to spark a wave of concern from people
who are currently biting their tongues in the hope that he will do the right thing on his own,” Brian Fallon, executive director of Demand Justice, a progressive advocacy group, told Stardia in a statement.
“With all due respect to Justice Breyer, I don’t think he is owed our deference here,” he continued, “because the decision about whether or not to stay on the Court is about millions of Americans whose personal fates will be impacted by the Court’s future composition.”
Breyer was nominated to the Supreme Court by President Bill Clinton nearly 30 years ago, and he has been a consistent vote on the court's liberal wing, helping to deliver landmark rulings in favor of LGBTQ rights
and reproductive rights
, among other things.
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, which could be a hint about how he views public pressure campaigns such as those calling for him to retire.
Democratic senators who spoke with Stardia this week were extremely cautious on the subject, arguing that a Supreme Court justice serving a lifetime term has the right to decide when to retire.
“I don’t believe an Article I branch should tell an Article III judge with lifetime tenure
what to do,” said Sen. Tim Kaine (Va.), the Democratic vice presidential nominee in 2016.
“I don’t have an opinion on that; that is up to him,” said Ohio
Senator Sherrod Brown.
Senator Bernie Sanders
(I-Vt.) simply did not respond.
Only Sen. Richard Blumenthal (Conn.), who has previously weighed in on the issue, was willing to gently nudge Breyer.
“I would not presume to tell a Supreme Court justice to retire, but he, more than anyone, understands the political reality,” Blumenthal said. “He’s worked here in the Senate. He understands 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 pinnacle of his career without any hint of criticism.”
Publicly urging a member of the court to retire is still considered impolite and taboo on Capitol
Hill, especially when many senators are the same age as the justices themselves. Such overtures are often made quietly through backchannels, as 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, and it’s not like whoever Biden nominates would significantly change the balance of the court,” said Sen. John Cornyn (R-Texas).
The Senate Judiciary Committee this week advanced Biden's nomination of Judge Ketanji Brown Jackson
, a potential Breyer successor supported by progressives, to the D.C. Circuit Court of Appeals, which has served as a stepping stone for most Supreme Court justices.
During his presidential campaign, Biden promised to nominate a Black woman to the Supreme Court if a vacancy arose. Jackson, 50, is one of the most prominent Black women on the federal judiciary.