After Donald Trump’s third Supreme Court nominee was confirmed in the fall of 2020, many on the left took solace in the fact that President Joe Biden’s victory would at least stop the judicial bleeding. Justice Stephen Breyer could finally retire at a time in which there was a Democratic White House and a narrow Democratic majority in the Senate.
But as 2021 unfolded, and much of the legal and political world waited for word from the center-left justice, Breyer spent much of the year downplaying the possibility of stepping down.
The conditions have apparently changed. NBC News reports:
Justice Stephen Breyer will step down from the Supreme Court at the end of the current term, according to people familiar with his thinking. Breyer is one of the three remaining liberal justices, and his decision to retire after more than 27 years on the court allows President Joe Biden to appoint a successor who could serve for several decades….
This will not alter the ideological split on the high court. There’s a dominant, six-member conservative majority, and Breyer’s retirement won’t change that. It will, however, allow the White House and Senate Democrats to replace an 83-year-old center-left jurist with a younger, and perhaps more progressive, successor.
On the campaign trail in 2020, Biden pledged to nominate a Black woman to the Supreme Court — there has never been a Black woman justice — and as NBC News’ report added, among likely contenders are federal appeals court Judge Ketanji Brown Jackson and Leondra Kruger, a justice on California’s Supreme Court.
The news is surprising, though there have been some hints in this direction. As regular readers may recall, in August, Breyer spoke to The New York Times’ Adam Liptak and his comments about his professional future sounded a little different from what he’d said just a few months earlier.
The Clinton-appointed justice recalled something Justice Antonin Scalia had told him. “He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Breyer said. He added that this would “inevitably be in the psychology” of his decision.
It was a rare acknowledgement: Breyer recognized the possibility that by delaying his retirement further, he increased the risk that his successor would be ideologically opposed to everything he’s done on the bench.
Though we may never know the degree to which this influenced Breyer’s thinking, Senate Republicans have been surprisingly candid in recent months about their plans in the event of his retirement.
Last summer, for example, Senate Minority Leader Mitch McConnell all but ruled out the possibility of confirming a high court nominee in 2024 — if there’s a Republican majority in the chamber. McConnell told Hugh Hewitt in June, “[N]o, I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election.”
Three months later, the Kentuckian wouldn’t rule out blocking a Biden nominee in 2023, either.
In December, Republican Sen. Chuck Grassley — the former chairman of the Senate Judiciary Committee, and currently its ranking member — went so far as to manufacture a rule that does not exist.
“You know what the rule is on that,” the Iowan told CNN. “You go back to 1886 and ever since then, when the Senate’s been of one party and the president’s been of another party, you didn’t confirm.”
In reality, there is no such rule — Grassley just made it up out of whole cloth — but the message was unmistakable: If Breyer waited to retire, and there’s a GOP majority in the Senate after the 2022 midterm elections, the justice’s Supreme Court vacancy would go unfilled until Republicans controlled both the Senate and the White House.
In other words, GOP senators were effectively telling Breyer that he had to retire this year. As of today, he appears to have taken their advice.
