Politically and jurisprudentially, it’s not all doom and gloom.
The New York Times reports that Justice Breyer intends to retire from the Supreme Court at the end of this term. If President Biden can pick a nominee who is palatable to the 50 senators who caucus with his party, he will be able to replace Breyer fairly quickly. Despite the fact that this will mean swapping Breyer for a younger non-originalist justice (not great, Bob!), I can think of at least four reasons that this is better news for conservatives than it might at first seem.
Reason One: Breyer is a non-originalist who will be replaced by another non-originalist. It would, of course, be much better for America were Breyer to be replaced by an originalist, but his retirement will not substantially change the makeup of the Court, and, in all likelihood, it will make things marginally worse for the “living constitution” brigade. If, as seems likely, Biden chooses a bomb-throwing hack in the mold of Justice Sotomayor, he will end up further marginalizing the real talent within the “living constitution” wing, Elena Kagan, and creating more distance between her and her originalist (and originalist-adjacent) colleagues. As a practical matter, the non-originalists’ best tactic is to anchor its positions around Kagan in the hope that, from time to time, she can persuade Justices Roberts and Kavanaugh to agree to the narrowest available holding. Already, Sotomayor makes this difficult. Adding a second unmoored lunatic in Breyer’s place would make it more difficult still. Often, the progressive movement’s cynical approach toward the Constitution pays dividends. In our current 6-3 environment, however, it may not. The more space there is between John Roberts and the median progressive justice, the weaker the progressives become.
Reason Two: Joe Manchin will probably end up voting for President Biden’s pick, but he will have to spend some political capital doing so. That is capital that he will not be able to spend supporting a pared down version of “Build Back Better,” or whatever else Biden can dream up before the midterms. Like Susan Collins, Manchin will be afforded some wiggle-room by his broad willingness to defer to presidential picks (he voted for Gorsuch and Kavanaugh), but he will not be afforded enough wiggle-room to do this and acquiesce to a reconciliation bill that is deeply unpopular in his state.
Reason Three: Republican voters tend to be more motivated by the makeup of the Supreme Court than Democratic voters. On balance, having a high-profile Supreme Court fight right before the 2022 midterms is likely to help Republicans in a number of the close Senate races they must win to win back the majority, pull the gavel away from Chuck Schumer, and control any subsequent nominations that arise while Joe Biden is president.
Reason Four: If, as seems possible, the Court overturns Roe v. Wade this summer, the vacancy created by Breyer’s retirement will force Democrats to channel their anger into the push to replace him instead of into some quixotic attempt to “pack” (read: destroy) the Supreme Court. It would be near impossible for a Democratic Party in possession of an unstable 51-50 Senate majority to hold hearings for a new justice while publicly proposing turning the Court into a legislature. The primary purpose of Supreme Court hearings is to convince the public — and the Senate — that the nominee in question is a respectable, qualified, disinterested professional who deserves an appointment for life. One cannot do that at the same time as one is advertising a naked power grab.