Justice Stephen Breyer’s reported plan to retire at the end of the Supreme Court’s term is a big win for President Joe Biden.
True, Biden’s sagging popularity is in large part a media cliché — he’s not doing worse than other presidents at the start of year two, despite a pandemic, an economic crisis, and a split-down-the-middle Senate on his hands. But the polls don’t lie; the guy sure could use a break.
The Supreme Court is it. And, as Biden once said, it’s a big f’ing deal.
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Consider, for a moment, the optics. By the end of June, it seems almost certain that the Supreme Court will have radically scaled back (if not overturned) Roe v. Wade. It will have gutted affirmative action, gun control, and what’s left of voting rights protections. It may even have rolled back the administrative state as we know it.
And on the other hand, a woman of color will ascend to the Court, probably confirmed along partisan lines. She will likely be relatively young (all three of the leading candidates are under 55) and will embody the hopes and dreams of millions of Americans.
The contrast couldn’t be clearer.
Remember, too, that, with the exception of affirmative action, the policies that the Court will be overturning this year are overwhelmingly popular. A large majority of Americans support abortion rights (albeit with restrictions), sensible gun safety laws, and a government that protects clean air and water. To see this contrast – a civil rights milestone on one hand, a six-person majority captured by the extreme right on the other – could significantly inspire voter turnout among the Democratic base and affect the 2022 midterm elections.
That base will also love the fact that, finally, the Democrats can get something done, since Mitch McConnell eliminated the filibuster for Supreme Court nominees in 2020, in order to rush through Justice Amy Coney Barrett’s nomination after millions of people had already voted in that year’s election. If Democrats band together, there’s nothing Senate Republicans can really do. They made their bed in 2020, and now it’s time they lie in it.
And, after an extended charade of three Supreme Court nominees pretending to have no opinion about abortion, the Democratic base can delight in someone actually answering senators’ question about it, and affirming the right of women to control their own bodies.
Perhaps most importantly, to whatever extent the Supreme Court can motivate liberal and moderate voters, that will finally balance the way it’s motivated religious conservative ones for decades. In election after election, conservatives have listed the Court as among their top five concerns; it didn’t crack the top ten for left-leaning voters until 2020. Religious conservatives have voted tactically and pragmatically, their eyes on a prize that is now at last within their grasp.
Despite decades of erosion of voting rights and civil rights protections, liberals have not behaved similarly. Perhaps, with two justices seated illegitimately (one in a seat stolen from President Obama, another in a seat stolen from President Biden), and with gerrymandering, voter suppression, voter purges, and other Jim Crow tactics in red states across the country, 2022 will finally be the year that the Court matters as much to liberals as it does to conservatives.
Finally, if you’ll permit me a fleeting moment of optimism in my otherwise pervasive sense of doom and despair, the confluence of these Supreme Court events could turn out to be good for democracy as well.
We already know what the 2022 midterms will be about: lies. The Big Lie, first and foremost, but plenty of subsidiary ones too: promises to impeach Biden (for whatever reason, who even cares), lies about socialism, pandemic-era insanity about authoritarianism, all of the usual nationalist-conservative catnip that has a permanent place on Fox News and outlets further right.
In that context, the Supreme Court will offer an object lesson in reality. The rollback of Roe will affect hundreds of thousands of real women. Overturning New York’s gun regulations will affect real laws and lives across the country. And Justice Jackson/Kruger/Childs will be a real, embodied counterpoint to the Court’s 6-3 conservative majority, which was shoved into place by unprecedented GOP shenanigans.
Such realities, to risk a bit of naivete, are what elections should be about—not the noxious fact-free porridge cooked up by the Taylor-Greenes, Boeberts, and Jim Jordans of the world.
Justice Breyer has had a long and distinguished career. As I wrote in 2021, calls for him to retire last year were premature. But he has done the right thing by choosing to retire now, both in terms of maintaining at least some balance on the Supreme Court, and, perhaps, in the rest of the government as well.
And his decision is an invaluable gift to Biden and the Democrats at a moment when they were in desperate need of a win.
