Stephen Breyer isn’t retiring, he doesn’t know when he’s going to retire, and, frankly, it’s making me tired.
In a new interview with CNN’s Joan Biskupic, Justice Breyer cited two factors that play into his decision about when to retire: his health and the Supreme Court. And while I don’t know anything about his health other than the fact that he’s turning 83 next month, in my view, both factors—his health and the Court—warrant firing the four clerks he already hired for next term and announcing his retirement immediately.
But alas, that’s not to be. According to Biskupic, when Breyer was asked if he knew when he was going to retire, he just said “no.” Breyer, it seems, is relishing his position as ranking liberal justice now that Ruth Bader Ginsburg is no longer on the bench.
This raises a critical question: What the hell, man?
Look, Steve. Can I call you Steve? No? Fair enough. It’s pretty disrespectful.
Look, Justice Breyer. I love your work. Truly, I do. I love that you emphasize facts, evidence, and science. You’re pragmatic. I love pragmatism. I even love how you still believe in the Supreme Court as an institution even though it is collapsing into a hyperpartisan morass of bad-faith arguments and white grievance.
As an abortion rights enthusiast, I cannot help but respect the banger of an opinion you dropped in 2016 in Whole Woman’s Health v. Hellerstedt. You told Texas to take its admitting privileges law—which attorneys for the state claimed was necessary to protect the health and safety of pregnant Texans—and stick it where the sun doesn’t shine. I love that about you.
And then, in 2020, you won my heart again with your ruling in June Medical Services v. Russo. You penned the majority opinion that struck down Louisiana’s admitting privileges law. Louisiana’s law was the same damn law as Texas’ and you’d already said Texas’ admitting privileges law was unconstitutional. Your opinion was basically the law nerd version of “I said what I said,” and I love that about you too.
But my guy? You are 82 years old. What are you doing? Why are you lingering? There is no reason for you to cling to this seat, and by doing so, you could very well transform an already hyperconservative 6-3 court to a court that is … what’s more conservative than hyperconservative? Uber conservative? Conservative extreme? My kidneys stopped functioning just thinking about it.
The point is, if you fuck around, we could end up with a 7-2 Court. And then those of us who rely on the Court to protect what minimal civil rights we have left? We’re the ones who are going to find out.
So why not go out on a high note? The longer you linger, the more goodwill you’re going to burn. Think of the outcry after RBG died: Throngs of people called her selfish for not retiring nearly a decade earlier. We never even got a chance to mourn her passing, people were so angry. And, in my view, Ginsburg had a damn good reason for staying on the bench. A far better reason than you do, sir.
What do I mean by that?
Well, let’s run the tape:
The year is 2013 and RBG has just written a barnburner of a dissent (and given the state of voting rights in 2021, a downright prescient one) in Shelby County v. Holder. That summer, according to the New York Times, President Obama approached Ginsburg about retiring so that he could be the one to replace her. (He was worried about losing the Senate in 2014.) Ginsburg said no. There was talk about approaching Breyer to ask him to retire, but apparently that never happened.
When she died, people claimed that her ego kept her from retiring when she should have. To that I say, Pfffft.
If I were RBG and Obama approached me to retire—and not the white guy who is basically the same age as me—I would have said no, too. Especially if it meant being replaced by a centrist white man.
People angry at Ginsburg that she didn’t retire labored under the same presumption that we all did—Hillary Clinton would win and would be the one to replace her.
It didn’t work out that way, obviously. And whether you ultimately agree with Ginsburg’s decision not to retire, I’d like to think we can agree that it wasn’t an ego-based decision. (And if you don’t agree, it’s OK to be wrong. *wink*)
But it seems pretty irrefutable that Breyer is sticking around purely for ego—he likes being the top liberal dog. He said as much. It’s a decision that could come back to bite in the ass everyone not on board with the Federalist Society agenda.
It could also stymie efforts to get a Black woman on the bench. It’s long past time we had a Black woman Supreme Court justice, and President Joe Biden pledged during his campaign to make it happen. In keeping with that pledge, Biden nominated Judge Ketanji Brown Jackson for Merrick Garland’s seat on the D.C. Circuit Court of Appeals, a move signaling that she’s on Biden’s Supreme Court nominee shortlist. Can you imagine how difficult it is going to be to get a Black woman past the conservatives on the Senate Judiciary Committee? Remember their attempts to paint Vanita Gupta and Kristen Clarke as anti-white racists (as if that’s a thing)?
With the manufactured uproar about critical race theory reaching mass hysteria levels, should Jackson be nominated, I expect her confirmation hearings to be an endless parade of Republicans on the Judiciary Committee asking her, “Do you think I’m racist?” and then before she can answer proclaiming, “Because I’m not.”
During Jackson’s confirmation, Sen. John Cornyn (R-Texas) asked her if her race would be a factor in her decision-making. Have you ever seen a white nominee asked if their whiteness would be a factor in their decision-making? No, you have not.
Breyer could have done a good thing and given the administration time to prepare for the racist and sexist swamp that conservatives are going to bog Jackson down in.
But instead he wants to be king of the mountain for at least another term. But one more term may be all it takes for things to go from bad to worse.
What happens if Breyer falls ill? What happens if a sitting Democratic senator croaks, thus handing the Senate back to Mitch McConnell? McConnell will never allow a Democratic president to appoint another Supreme Court justice if he has anything to say about it. He has already said as much: He told conservative radio host Hugh Hewitt it would be “highly unlikely” that he’d consider a Biden appointment in 2024 if Republicans take back the Senate. And should Republicans take back the Senate earlier than that after some tragic circumstance? Yikes.
CNN’s Biskupic speculates that Breyer may retire next term. Maybe he wants in on the Dobbs v. Jackson Women’s Health Organization case. After all, he did pen the last two abortion rights decisions. Perhaps he wants to register his dissent.
Let’s just hope nobody dies before then.