Yesterday we all heard the announcement that Justice Stephen Breyer is retiring from his seat on the U.S. Supreme Court. Although Justice Breyer has been a valuable member of the Court for more than 20 years, almost 30, it was the right decision and likely one that, much as I loved her, Justice Ruth Bader Ginsberg should have made several years prior to her death. It is a sad statement of our current situation that the Court has become a political pawn … the framers of the Constitution did not intend that at all. Jennifer Rubin has written an editorial that I think sums up the situation quite well …
26 January 2022; 2:50 p.m. EST
The announcement that Justice Stephen G. Breyer will retire from the Supreme Court came as a relief to Democrats and defenders of democracy. The reaction is certainly not because Breyer has been a negligent jurist or because he failed to defend our democratic institutions. To the contrary, he has been a model member of the court — conscientious, thoughtful, decorous.
So why are those who admire Breyer the most cheering the loudest? Because President Biden, with his a bare majority in the Senate, will be able to name a replacement who might prevent the further diminution of the court’s stature.
Think how bizarre that is. We take for granted in our cynical political environment that Democrats will react to news of Breyer’s retirement with relief — or even joy. But this actually highlights the degree to which the Supreme Court has lost credibility and has ceased to function as an impartial interpreter of the law.
We know a Republican-controlled Senate would not confirm a Biden pick. We know Breyer could have stayed on the court longer if not for his concern that he would be replaced by a radical partisan, or that his seat would be left open until a GOP president and Senate could replace him.
It is also clear that a Biden pick is needed to defend fundamental constitutional rights, as the court’s six-member majority has a different agenda: imposition of an ideological (if not theological) agenda from the bench. And that the right-wing majority is impervious to reason and appeals to precedent. Instead, it has pre-decided every case of political import and will reach a conclusion pleasing to their political patrons.
More things we can be sure of: During the Senate confirmation hearings for Biden’s nominee, Republicans will speechify about critical race theory, hypocritically denounce judicial activism and insist the nominee’s failure to agree with their ideological position on guns or abortion or whatever is grounds for opposing their confirmation. Republicans, after confirming GOP presidents’ nominees who refused to give a straight answer to scores of questions, will also complain the nominee has been evasive and, therefore, should be disqualified. Maybe the nominee will get a few Republican votes. Maybe.
This is no longer about picking jurists immune from partisanship to conscientiously decide cases; we have turned justices into political pawns. This stems from a determination by Republicans to deny Democratic presidents their choice of Supreme Court nominees while selecting and confirming justices who will be reliable partisans unmoored to precedent. In other words, partisan hacks.
Add in lifetime tenure, and each nomination becomes a battle to achieve partisan ends and secure them for as long as possible with younger and younger nominees. (Think about how that affects the quality and temperament of the court.)
It is hard to know how to fix a court that has lost so much credibility and is so out of step with the values of a healthy majority of the country. Limit its jurisdiction? End lifetime tenure? Increase the number of justices? Perhaps some of these would help guide the court back to more jurisprudentially defensible conduct, but none are realistic given that the GOP will refuse to give up trying to maintain its lock on the court.
The problem with the court is a manifestation of our problematic political system. One party has gone off the rails, divorced itself from reality and concluded it can defy democratic norms to impose its will on others. Thanks to the outsize power given to the right-wing minority in the Senate, as well as that minority’s shameless devotion to power politics at the expense of democratic values, that party can exert a stranglehold on our democracy.
Until we reform our system to return a proper balance between the minority and the majority, we will have one infuriating, anti-democratic episode after another (e.g., a filibuster of voting rights reforms, a forced retirement of a Supreme Court justice, a court that shreds women’s rights).
So by all means, Democrats should breathe a sigh of relief that Breyer did the “right” thing. But they do so because they understand all too well that the court — like our politics — is fundamentally broken.