At the Democratic Presidential primary debate in Charleston, South Carolina, on February 25, 2020, before Joe Biden had a hold on the race, Gayle King, of CBS News, asked each candidate for his or her personal motto. Mottos are Biden’s favored rhetorical mode, and he offered no fewer than three: about getting up when you are knocked down, about treating people with dignity, and “also that everyone should be represented.” In between that line and a bonus motto that he said had been his mother’s (“You’re defined by your courage—you’re redeemed by your loyalty”), Biden squeezed in a promise. “We talked about the Supreme Court,” he said. “I’m looking forward to making sure there’s a Black woman on the Supreme Court, to make sure we in fact get every representation.”
He has his chance now. On Wednesday, news broke that Justice Stephen Breyer, who is eighty-three, plans to retire. (Breyer himself has not made such an announcement yet. He is expected to stay on until the end of the current term, in late June.) Breyer, who was nominated by President Bill Clinton, has had a distinguished twenty-seven-year tenure as one of the Court’s liberal stalwarts. His is a distinct voice, if not the loudest one. He is careful rather than hesitant, and seems proud of that care. He has stood in opposition to the death penalty, questioning whether it can ever be in conformity with this country’s values. He also has a somewhat idiosyncratic interest in comparative international law. He is the kind of pragmatist who can come across as an overthinker. In June, 2005, the Court issued two rulings on displays of the Ten Commandments in public settings, and Breyer was the swing vote in both: in one, he favored allowing the display, and in the other favored taking it down. (The difference was that the one he said could stay was decades old.) During oral arguments, he pushes both sides to be better.
And, as the Court has lurched to the right, he has spoken about that shift with frankness and a sense of urgency. In December, in oral arguments in Dobbs v. Jackson Women’s Health, a case that is looking like the vehicle for the outright overturning of Roe v. Wade and its successor case, Planned Parenthood v. Casey—which together are the guarantors of access to abortion—Breyer spoke about the foundational nature of certain precedents and their relation to the Court’s power, which he framed as a question that is “usually just philosophical, but I think it has bite here.” He noted that Alexander Hamilton had observed that the Court didn’t have “either the sword or the purse,” and so to have power it had to have public support—and that, Breyer said, “comes primarily from people believing that we do our job. We use reason. We don’t look to just what’s popular.” Furthermore, he continued, a problem that the Court was confronting in cases that could overturn watershed precedents was that people were “going to be ready to say, ‘No, you’re just political, you’re just politicians.’ And that’s what kills us as an American institution.” (During the same oral argument, Justice Sonia Sotomayor made the same point but more bluntly, asking, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”)
Breyer knows what a major crossroads the Court is at, with the conservative super-majority of six Justices—including the Trump-appointed triad of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—feeling its strength. On the liberal side, there is only him, Sotomayor, and Elena Kagan. One thing that can be said for Breyer is that, in his years on the Court, he has known how to not get in the way of the strong women around him. But one of those strong women, Ruth Bader Ginsburg, lost a fight between her control of her legacy and her mortality, and he may have learned something from that, too. Barrett now sits in Ginsburg’s seat.
It is thus no disrespect to Breyer if observers’ thoughts go immediately to who might replace him, because his thoughts have surely gone there, too, and no doubt they have much to do with the timing of his retirement. There are barely more than eleven months to go until the seating of the next Congress, in which the Democrats, who are not well positioned for the midterm elections, may no longer have control of the Senate. Justice Antonin Scalia died in February, 2016, and the eleven months then left in President Obama’s second term were not enough to get Merrick Garland, Obama’s nominee, confirmed. Donald Trump got to put Gorsuch in that seat, instead. At the time, of course, the Republicans controlled the Senate, and Mitch McConnell, as the Majority Leader, did not even pretend to give Garland a shot. Now the Democrats have control, if barely; in a fifty-fifty Senate, they depend not only on unity but on Vice-President Kamala Harris’s tie-breaking vote. (Breyer was confirmed by a vote of eighty-seven to nine, a margin that bespeaks a different era.) It is unrealistic to think that the situation will be enough to deter any and all antics on McConnell’s part. Breyer is giving Biden and the Senate Democrats a good amount of room and time to work with. They may need it.
Biden’s promise to name a Black woman to the Court cannot have escaped Breyer’s attention, either. There are at least two potential candidates that he would already be familiar with. One is Leondra Kruger, who sits on the California Supreme Court, once clerked for Justice John Paul Stevens, and is only forty-five years old. (Given the lifetime nature of the appointment, youth is a plus; Barrett is forty-nine.) The other is Ketanji Brown Jackson, who is fifty-one and was oncer Breyer’s own clerk. She sits on the Court of Appeals for the D.C. Circuit, to which she was confirmed just last year, by a Senate vote of fifty-three to forty-four. Jackson is perhaps best known for writing, in a decision, from 2019, turning down an attempt by a former White House official to assert an outrageous claim of executive privilege in Trump’s name, that “Presidents are not kings.” Other names have come up, too, including J. Michelle Childs, a South Carolina district-court judge, who is fifty-five and reportedly has the support of Representative Jim Clyburn, a crucial ally to Biden in his Presidential run, and also Candace Jackson-Akiwumi, a judge in the Seventh Circuit who was once a federal defender. Any of them would be a historic choice. There has never been a Black woman on the Supreme Court; there has never been more than one Black Justice serving at a time.
The Court does not appear, at present, to be the easiest of workplaces. Earlier this month, in unusually impassioned remarks during oral arguments in challenges to two of the Biden Administration’s vaccine mandates, Breyer expressed dismay at the idea that the mandates would be blocked while litigation about them proceeded, calling it “unbelievable.” A majority of his colleagues did, indeed, block one of the mandates. (The second, directed at workers at health-care providers that accept Medicare and Medicaid money, was allowed to go forward.) This week, the Justices agreed to hear what may be two explosive cases on affirmative action. The Court lately has been more willing to use tools such as its “shadow docket” and certiorari before judgment, both of which, broadly speaking, have the effect of allowing the Justices to intervene in cases sooner, while hearing fewer arguments and voices. Last week, Breyer and Kagan joined a dissent that Sotomayor wrote regarding the Court’s refusal of an emergency request for help by Texas abortion providers, who had come to the Court because judges in the Fifth Circuit were stalling in implementing the Justices’ own orders in another abortion case—with the effect of all but banning abortion in Texas after six weeks. Sotomayor wrote that the decision was “a disaster for the rule of law and a grave disservice to women in Texas.” Both parts of that warning describe the Court that Breyer will be leaving behind. The majority is both reckless in its willingness to play fast and loose with the considerable powers it has and ideologically driven in a way that may put many more vulnerable Americans at risk.
And yet there is no sign that Stephen Breyer is leaving because he is shy about engaging in those fights—this isn’t a matter, in Biden-motto terms, of not getting up when you’re knocked down. Walking away takes courage, too. He is, it appears, simply trying to pass a baton—before Mitch McConnell gets in his way.
