The pressure campaign started months ago. Outside the US Supreme Court in April, a billboard truck with a black-and-white image of 82-year-old Justice Stephen G. Breyer circled the grounds, neon green letters blaring, Breyer, retire.
That unsubtle message, paid for by a progressive group, has been adopted by liberal law professors and politicians, fueled further by the renewed threats by Republicans to block President Biden from appointing a Supreme Court justice.
If anyone is built to withstand the pressure, it is Breyer, who has given no indication he plans to retire when the Supreme Courts term ends in the next few weeks. The senior member of the courts shrinking liberal minority, Breyer railed against public misperceptions of justices as junior level politicians just this past April during a two-hour lecture at Harvard Law School, and has expressed a deep fear that the nations highest court could lose public trust if its members are seen to be guided by politics.
Nonetheless, the pragmatic and likable jurist, who has written more than half a dozen books on the preservation of democracy and the rule of law, is faced with the very high stakes and hyperpolitical moment he has long sought to remain above.
The consternation among Democrats over Breyer escalated last week, as Republican Senate minority leader Mitch McConnell acknowledged he may not let Biden replace the justice if Republicans win back the Senate next year.
I think its highly unlikely in fact, no, I dont think either party, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election, McConnell told conservative radio host Hugh Hewitt, while declining to answer whether he would allow Biden to replace a justice in 2023.
Those threats have painted a horrifying prospect for many Democrats: that McConnell, after blocking former president Barack Obama from filling a Supreme Court seat by citing the upcoming elections and then reversing his own standard to replace Justice Ruth Bader Ginsburg with a Donald Trump appointee in 2020, will again change the rules and block Biden from making a pick.
McConnells hardball tactics, which legal experts say have not been seen since the days of the Civil War and Reconstruction, have given Republicans a 6-3 majority on the nations high court, a commanding advantage that the party has pursued since the late 1960s. The dizzying turn of events has pushed some Democrats to rethink their approach to the court.
Thirteen progressive organizations, including the Sunrise Movement, Justice Democrats, and Black Lives Matter, ran an ad in Politico on Tuesday calling on Breyer to retire, even though they credit him with being a critical voice on the court for women and people of color. Nearly 20 law professors and political scientists on Friday published an ad in The New York Times, calling Breyer a remarkable jurist, but one who should head for the exit with future control of a closely divided Senate uncertain.
They argue the court is already politicized, and Democrats will continue to lose power if they dont wake up to that fact.
Look at how the Republicans blocked Merrick Garland, Obamas ill-fated nominee in 2016, said Erwin Chemerinsky, dean of the UC Berkeley School of Law and one of the letters signees. Look at how the Republicans pushed [Supreme Court Justice] Amy Coney Barrett. Breyer retiring at the end of his term is no more likely to politicize the court than those things.
Not all believe the tactics will work; some worry the pressure campaign could even backfire on Breyer, who has long written about the need for courts to be apolitical, and whose long view of history insulates him from the tweets, cable news chyrons, and billboard vans of the current age.
Suppose he wanted to retire? Do these calls make it easier or harder for him? In some ways they make it harder for him, said Akhil Reed Amar, a professor of law and political science at Yale University who clerked for Breyer when he was a federal judge in Boston. Breyer has publicly spoken out against the proposals of progressives urging Democrats to fight back by adding seats to the court.
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 courts power, including its power to act as a check on the other branches, he warned in April.
He has long said he doesnt believe justices should time their retirements politically. Its not really our job, Breyer said in a CBS interview in 2015 about the pressure his then-colleague Ginsburg was under to retire during the Obama administration. Your job is to treat administrations not as political entities, that you favor some politician or you disfavor another politician. ... Breyers closest friends and former clerks say they wouldnt dare to get into Breyers mind, and refer to his retirement as a deeply personal decision. But if they can offer any insight into his thinking as he finds himself at the center of a pressure campaign its this: He will do whatever he believes is best for the institution and the common good.
His code words are common sense, decency, democracy, said Charles Fried, a professor of law at Harvard who served as US solicitor general under Ronald Reagan and has known Breyer since he was a law student. He is a very practical person. If you look at some of his writings, he is very interested in what the practical effect of what his decisions will be. ... So far, the court has avoided the extreme polarization of Congress. Even though high-profile cases touching on voting rights and abortion have fallen along partisan lines, justices often decide lower-profile cases unanimously.
But some believe Breyer has gone out of his way somewhat naively to portray the court as above the political fray at a time when the confirmation process is anything but.
I think the Supreme Court is a political institution and at some level Breyer recognizes it as well, said Christopher Kang, chief counsel for Demand Justice, an advocacy group that formed in 2018 to push back against the ideological right tilt on the court and funded the billboard van. Kang said he did not believe the groups tactics would backfire.
So far, Biden has followed the lead of Obama, who declined to encourage Ginsburg to retire during his time in office, by not pressuring Breyer to step down. He believes thats a decision Justice Breyer will make when he decides its time to no longer serve on the Supreme Court, White House press secretary Jen Psaki said in April. Biden has promised to nominate the first Black woman to the Supreme Court should he get a vacancy.
The clash over Breyers retirement reflects a broader rift among Democrats over whether to pursue sweeping structural reforms, such as expanding the court or abolishing the Electoral College, to counter Republicans, who are passing laws to make voting harder in many states on the false pretext that the 2020 election was fraudulent and who have dominated judicial appointments at the federal level.
Sotomayor should retire as well, but god knows they both won't before Republicans will win 51 seats in the Senate in 2022, block everything for 2 years, and then let President Ron DeSantis (who wins after losing the popular vote) appoint 4 justices in one term.