It is only a partial exaggeration to say that nothing in Stephen Breyer’s career as a US Supreme Court justice becomes him like the leaving of it.
Throughout his 28-year stint, he was known as a pragmatically liberal justice. His written opinions were lawyerly and fact-based rather than soaring. But he believed passionately that America’s highest court should be an engine of progress that is above politics.
With a growing likelihood that the Democrats will lose the Senate in November, Breyer has announced his retirement in plenty of time for President Joe Biden’s choice of replacement to be confirmed. That should avoid a repeat of the ugly stand-off that occurred when Antonin Scalia died but the Republican Senate refused to consider Democrat Barack Obama’s nominee, Merrick Garland. After the GOP took the White House, majority leader Mitch McConnell changed the rules to enable Supreme Court confirmations by a simple majority.
Breyer’s decision stands in contrast to Ruth Bader Ginsburg, who resisted calls to step down in 2014 while Democrats were in control. Her 2020 death allowed Republicans to construct a 6-3 conservative majority. Breyer knew it was time to go. At 83, he has lived longer and served longer on the court than Ginsburg had in 2014. And while Ginsburg could dream of setting occasional liberal precedents, he could expect to be stuck on the losing side.
Breyer will be missed, especially by those who fear the court is becoming too politicised. Though solidly liberal, his style was consensual. He sought to bring the temperature down and was a bit more likely to vote with the majority than his peers on the left. He genuinely believed that America’s highest court must not become a shouting match between two extremes. Alas, his search for a constructive middle was increasingly rebuffed by conservatives who were willing to abandon precedent and comity in pursuit of their agenda.
In his place, Biden has promised to nominate the court’s first black woman justice. Names being floated include US appeals court judge Ketanji Brown Jackson and California supreme court justice Leondra Kruger. If Democrats stay united, their nominee ought to be confirmed easily. We can only hope the hearings do not undermine already low public support for the court.
The nominee will join a court with a conservative majority that seems hell-bent on over-ruling decades of precedent on issues such as abortion rights, gun control and the use of race in college admissions. Democrats rightly want to counter that with someone with the intellectual heft and energy to articulate a liberal alternative.
They should think hard about style. Breyer’s replacement cannot change the ideological balance, but a thoughtful, persuasive justice might be able to prod the majority to put more emphasis on precedent and gradual change.
Biden has a choice between two historical precedents. John Marshall Harlan was a lonely liberal voice as the 19th century court drastically restricted civil rights and liberties. The “Great Dissenter” was proved right, but by then he had been dead for decades.
By contrast, William Brennan married liberal ideology with wily negotiation skills. He struck bargains with more conservative colleagues, nudging their opinions to the left. It made him one of the 20th century’s most influential justices. A less strident, more overtly consensual nominee would also make It easier to hold on to the votes of conservative Democratic senators and pick up some Republican votes. Choosing such a candidate would honour Breyer’s pragmatic decision to step down, along with his whole career.