Stephen Breyer is retiring at the end of the current Supreme Court term, at the age of 83, after 27 years on the Court. We wish him good health and a happy retirement. We wish we could be equally cheery about the prospect that his replacement will be faithful to the Constitution and laws of the United States.
The first choice will be Joe Biden’s. With a 50–50 Senate and an impending fall election, he will have to choose carefully to ensure that his selection can be confirmed. Nothing in Biden’s presidency so far suggests that he will bother to interpret correctly what pivotal members of his Senate caucus are thinking before he makes his choice.
Biden has unwisely limited his options by preemptively declaring during the 2020 campaign that his first Supreme Court nominee would be a black woman. In a stroke, he disqualified dozens of liberal and progressive jurists for no reason other than their race and gender. This is not a great start in selecting someone sworn to provide equal justice under the law.
Unlike Donald Trump, Biden did not run on a named list of potential candidates, so he will then have to sell his nominee to the public. That nominee is almost certain to be a progressive who treats the written Constitution with contempt. Even if Democrats remain united enough to provide the votes to confirm such a nominee, Republicans should extract a political cost in the midterm Senate races for doing so. The last three cycles of Senate elections have shown that fidelity to the Constitution is a winning political issue for Senate Republicans.
With a difficult midterm looming and a Biden nominee needing to navigate a closely divided Senate, we hope we have heard the last for some time of talk about Court-packing. Biden’s own commission punted on the issue, and while that was partly to keep the president’s options open, progressives have been itching to use threats to the Court to influence its decisions on abortion and racial preferences. That would become a more politically dangerous game now.
In terms of how they will rule on the bench, it may not matter much whom Biden nominates. Conventional, institutionalist liberals tend to be every bit as results-oriented and lockstep-loyal on the bench as hair-on-fire progressives. Conservatives get nervous about every Republican nominee; Democrats have not sent a genuinely heterodox justice to the Court since Byron White was appointed by John F. Kennedy.
Breyer’s own career illustrates the limits of what a “moderate” liberal looks like. He was occasionally sensible in business cases and matters of low political salience, and to his credit, he voted to strike down the most coercive aspects of Obamacare’s Medicaid expansion. But that was about it. Like Ruth Bader Ginsburg, appointed the previous year by Bill Clinton, he was sold as a moderate almost entirely on the grounds that he would not impose a knee-jerk objection to the death penalty. But on the Court, Breyer became a single-minded crusader to use every available argument to hobble capital punishment, no matter how disconnected those arguments were from the text and history of the Constitution. He was a reliable and invariable vote for abortion, same-sex marriage, and other liberal and progressive social causes. In recent years, he became progressively more shrill on matters relating to the Covid pandemic.
So let us have another national argument about whether the Supreme Court should follow the written Constitution or not. There is no reason to shy away from the fight.