If Breyer doesn’t retire now, we run the risk of yet another conservative justice taking his place
The Supreme Court of the United States sent chills down the spines of progressives this week by agreeing to review Mississippi’s abortion law, which bans most procedures after 15 weeks. The review will take place next term, and it will be decisive. If the Mississippi law is upheld, the ruling could give free reign to other states looking to roll back women’s right to self-determination and health, significantly curtailing Roe v Wade.
With that announcement, Democrats are renewing calls for Justice Stephen G Breyer to resign. The issue, in their view, is one of timing: Democrats still control the House of Representatives and maintain the thinnest possible majority in the Senate, with a 50/50 split between Democrats and Republicans. Democrats can also count on Vice President Kamala Harris as a tie breaker.
Breyer, 82, is one of the only liberal justices left on the Court, with six out of nine justices leaning conservative. He’s also the court’s oldest Justice. We need him to step down while there is still a chance to get a new progressive justice confirmed, and before the Donald Trumps, Matt Gaetzs, and Marjorie Taylor Greens of America have another chance at the most important job in the country.
But Breyer appears determined to stay. So far, he has justified his decision by saying justices should be “loyal to the rule of law, not to the political party that helped to secure their appointment”. He doesn’t want the public to see the judiciary as camouflaged politicians, and worries that his stepping down due to Democratic pressure would further polarize the nation.
Under any other circumstances, Breyer would be right. The end would justify the means, and his staying on and ignoring outside pressure would, in the long run, serve the country by preserving the Supreme Court’s image as an imperturbable, apolitical institution. But everything changed with Donald Trump and his appointments of Justices Brett Kavanaugh and Amy Coney Barrett.
Breyer’s reasoning is predictable: you don’t get all the way to the highest court in the nation by being easily dissuaded or weak of heart. But as legal scholar Erwin Chemerinsky explained in a Washington Post piece, Breyer “should learn from former Justice Ruth Bader Ginsburg’s mistake”. It’s hard to disagree with Chemerinsky here. The stakes are much too high to dither.
The same arguments Breyer offers now were made during the Obama administration when Ginsburg – my personal and professional hero – held on to her lifetime appointment, still smart as a whip but in dwindling physical health. Her death was followed by Barrett’s appointment and confirmation.
Ginsburg couldn’t have known what was to come, nor was she to predict that she would become terminally ill during Trump’s ruinous, vitriolic, racist, sexist, and hate-filled presidency. I do not blame her for wanting to go on as long as her brilliant mind would allow. Even on her deathbed, she was poignantly aware of the stakes, telling her granddaughter that it was her “most fervent wish” that then-President Trump wait to replace her until after the 2020 election.
That, of course, did not happen. And now, in addition to Kavanaugh, who has faced allegations of sexual misconduct, we have a former anti-abortion activist (Barrett) deciding about reproductive rights. The scope of those rulings shouldn’t be underestimated: they carry weighty, sometimes intergenerational repercussions. In 1936, my great-grandmother died of a botched, illegal abortion in rural Missouri. My family continues to feel the repercussions of that trauma to this day.
After four years of Trump and his pack of toadies willing to deny facts and violate law to hold on to their power and paychecks, I would urge Justice Breyer to consider what a judicial appointment could mean for the future of this country. If he doesn’t step down now, we run the risk of someone with a diametrically opposed judicial and moral philosophy taking the bench in a potential Republican comeback in 2024.
Considering how most Republicans continue to bow to Trump (and silence members of Congress like Representative Liz Cheney, who spoke out against him), it could very well be Trump, or someone equally toxic, deciding who takes the place of yet another progressive justice. This is a misstep this country wouldn’t recover from.