Last year, former Supreme Court Justice Ruth Bader Ginsburg died, and the Democrats’ nightmare ensued. A month later, former President Donald Trump nominated Justice Amy Coney Barrett — an anti-abortion advocate — to replace Ginsburg, a liberal and feminist icon. The Republican-controlled Senate confirmed this nomination.
Ginsburg refrained from retiring during former President Barack Obama’s second term, which allowed Trump to appoint her successor. As the oldest current member of the Supreme Court, Associate Justice Stephen Breyer should learn from Ginsburg’s mistake. He should retire now to guarantee that he will be replaced by a liberal justice.
While Democrats currently control Congress and the presidency, it is possible that the midterm elections next year could hand the Senate to Republicans, giving them the upper hand on all votes, including those to confirm Supreme Court nominees. Sen. Mitch McConnell, R-Ky., has already confirmed it would be “highly unlikely” that Republicans would vote to confirm a Biden Supreme Court nominee should they take back the Senate. While Breyer does not appear to have significant health issues, he is 83 years old. Ginsburg died when she was 87, four years after Obama’s presidency ended.
The question of Breyer’s retirement is on the minds of liberals, including Breyer himself. In response to calls for him to step down, Breyer has said that he will retire on his own terms. He has offered explanations for his refusal to provide a clear timeline, including worries that it will increase polarization, a consistent theme from him. Breyer argued that “if the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”
While it is honorable that Breyer cares about preserving the integrity of the Supreme Court and American institutions, this strategy doesn’t work when the other side refuses to reciprocate.
On election night in 2000, the Wall Street Journal reported that then-Justice Sandra Day O’Connor “would be reluctant to retire if a Democrat were in the White House and would choose her replacement.” O’Connor retired in 2005, with former President George W. Bush selecting her replacement. Former Justice Anthony Kennedy chose to retire in 2018 after Trump developed a relationship with Kennedy to ensure that he trusted Trump to choose the right person to replace him. Both O’Connor and Kennedy are still alive today.
Liberal justices have illustrated how retiring honorably, or on one’s own terms, allows conservative justices to remake the Supreme Court. Ginsburg’s death last year, and the aftermath illustrated the damage these decisions can cause. In 1991, former Justice Thurgood Marshall chose to retire during the George H.W. Bush administration for reasons related to his health. Bush replaced him with Justice Clarence Thomas, who is still on the bench today and is one of the most conservative justices on the Supreme Court. It is understandable why Marshall retired when he did, and he certainly deserved that retirement. But, it is undeniable that his retirement dramatically changed the makeup of the Supreme Court for at least the past 30 years, and likely more.
While the Supreme Court should, in theory, avoid party politics and focus on delivering decisions that follow the law and the Constitution, it has become clear in recent years that the Supreme Court, along with the entire American judicial system, has become much more politicized. Ending the filibuster on all judicial nominations and McConnell’s lack of action to replace former Justice Antonin Scalia in 2016 has made the Supreme Court a political branch of both parties. Breyer should understand that his refusal to retire is not a principled stance against the polarization of this country. Rather, it is an idealistic mistake that could give conservatives an even stronger hold on the Supreme Court, enabling the Court to make decisions that harm Americans.
The current Supreme Court has already shown its ability to make consequential decisions that dramatically harm people’s lives. Its lack of action on the Texas abortion law illustrates why we need liberal justices on the Supreme Court. Besides this decision, the Supreme Court’s upcoming term includes cases that challenge Roe v. Wade, gun laws and the role of religion in schools. These are all issues that could change American life, and more significant decisions are sure to be heard in the coming years.
The Supreme Court’s 6-3 conservative majority means that the loss of another liberal justice would lead to conservative domination for years to come. The only way to ensure that Breyer will be replaced by a liberal justice is for him to step down before the 2022 midterm elections and allow Biden and the Democratic Senate to choose his replacement.
Lydia Storella is an Opinion Columnist and can be reached at storella@umich.edu.