Here’s why a ‘liberal’ judge is quitting the US Supreme Court now

WASHINGTON — US Supreme Court Justice Stephen Breyer, invariably described over the past year as “the court’s senior liberal justice,” has long expressed his displeasure at being described as a liberal.

Breyer thinks viewing the court as a partisan institution is dangerous. He’s spent his career on the bench striving for legal decisions that compromise across ideological lines. He wrote a book just last year arguing that politicizing the court will delegitimize it and undermine the rule of law itself.

So when he stood beside Joe Biden at the White House on Thursday to announce he’ll retire in June – the US president celebrated Breyer’s career of making the law “work for the people” – it was fair to see the circumstances of Breyer’s leaving as a kind of surrender.

The reason he’s retiring now, after 29 years on the country’s highest court, is political calculation. He’s 83, and there’s a congressional election in the fall. If he had stayed, only to die after the Republicans take control of the Senate (or, beyond 2024, the presidency), he’d likely be replaced by another staunch partisan conservative. That is what happened when Ruth Bader Ginsburg died in the last days of Donald Trump’s presidency, leading to the court’s current 6-3 conservative supermajority.

By leaving now, Breyer allows Biden to replace him with an ideological ally.

Indeed, much of the immediate coverage of the formal retirement announcement at the White House focused on the politics of replacing Breyer. Biden used the occasion to confirm his plans to appoint a Black woman to the court, as he promised to during the election campaign.

(There’s a zeitgeisty element to the timing – the same week that the court announced it would hear two cases on the legitimacy of affirmative action in university admissions, Biden made clear he will employ such a strategy with his selection. He is not the first president to do so, however: Ronald Reagan promised to appoint a woman to the court when he was running for president and followed through, allowing Sandra Day O’Connor to break the Supreme Court’s glass ceiling.)

Watching Biden and Breyer together at the White House, it was not hard to observe that for both men, contemporary political reality was shattering ideals on which they had based their identities in public life.

Biden spent decades as a centrist who could get along with and work with anyone, a politician who believed that US democracy needed the spirit of bipartisan compromise in order to survive. Breyer has resisted partisan views of the court and built three decades of jurisprudence demonstrating centrist legal compromise.

This month, their actions seem to acknowledge those principles aren’t workable in the current environment. Biden took the gloves off over voting rights, suggesting that Republican obstructionism in the Senate has led him to believe it may be time to get rid of the filibuster. Breyer has seen Senate Republican Leader Mitch McConnell and other Republicans openly treat the courts as just another venue for partisan gutter brawling. McConnell has promised more of the same: he’s said that if he controls the Senatehe’ll block Biden the same way he did to Barack Obama, holding any vacant Supreme Court seat open until a Republican can appoint replacements.

Breyer is correct that this is not how the court was designed to work. Yet in recent years, he sat on the bench with conservative justices who seem to identify with a political movement. As Slate’s Dahlia Lithwick, a Canadian lawyer who has been writing about the US Supreme Court for more than two decades, wrote this week, “He really believed that he could reason with his hard-right colleagues to secure trade-offs that would serve the greater interests of the court and American democracy. Time and again, he tried to prove his good faith by voting with the conservative wing. Time and again, his Republican-appointed colleagues rebuffed these olive branches, plowing ahead with their agenda over Breyer’s increasingly desperate pleas for moderation. ”

Of course, the law is always political – political scientist Emmet Macfarlane, who wrote a book about how the Canadian Supreme Court works, has noted that in cases involving political and moral issues and public policy, “judging itself has inherently political elements.” Even in Canada, where most people never hear about or consider the political ideologies of their judges, “Law and politics overlap. Judges’ ideological matter. ”

But as Macfarlane says, the law is not only political. And more importantly, it need not be partisan, with teams of bitter enemies engaged in adversarial combat. A judge’s world view and ideological orientation will inform their interpretation of moral and constitutional issues, certainly, but the court should be striving to rise above partisanship whenever possible to reflect the higher principles that ensure the integrity of the whole system of government.

Yet, in the US today, virtually every issue and institution has become a venue for partisan trench warfare. This has been resisted more performatively by Democrats than Republicans (and plenty of analyzes have suggested that Democrats may benefit from presenting theirs as the party that believes in compromise and bipartisanship). But if every time you reach your hand across the aisle you wind up with it tied behind your back – while your opponents punch you in the face – you might eventually conclude that good faith only goes so far when you’re the only one displaying it .

And so Breyer, who spent his late career railing against applying political calculation to the Supreme Court, retires in an act of open political calculation.

Breyer spoke at the White House about the “American experiment” of liberty, democracy and equality under the law, and whether it can endure for another generation. He did not directly get into how the court’s politics might influence that question. He said he was optimistic. But there he was, next to Biden.

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