I understand the calls for Stephen Breyer to resign. We don’t want another RBG—meaning, another long-in-the-tooth liberal justice who could have stepped down under a Democrat but instead held on and was replaced by a Republican.
I understand the logic and the fact that liberals are still traumatized by the travesty of Justice Amy Coney Barrett’s Vegas wedding-style confirmation, as well we should be.
But there are three strong reasons to cut out the retirement talk, at least for now.
First, we all know it’s demeaning. Justice Breyer, 82, has a long and distinguished career as a jurist and Supreme Court justice. While he is the most moderate of the three remaining liberals on the court, he has nonetheless defended the rights of the most vulnerable—in particular, those condemned to die in America’s “machinery of death” (in the late Justice Blackmun’s phrase). He has earned the respect of his colleagues during his 27 years on the court. He is the court’s leading opponent of the selective and bogus interpretive method known as “originalism.” He deserves better than to be shown the door.
I think all the pundits who have urged Justice Breyer to step down know this. They just think that there are other, more pressing considerations—like maintaining at least some hope of preserving reproductive rights, voting rights, LGBTQ rights, and civil rights as a whole.
I would agree with this argument if it were true, but it isn’t.
Remember, it’s 2021, not 2022. Justice Breyer can serve another term on the Supreme Court if he wishes to do so, and step down in July, 2022. The “suggestions” being whispered in his direction are a year premature.
But wait, wouldn’t this put Democrats in the position of confirming a Supreme Court justice just four months before a congressional midterm election? Egads! How terribly offensive! How dare they do such a thing?
Come on. Republicans confirmed Justice Barrett eight days before a presidential election, after swearing on a stack of Bibles that they would never do such a thing. Anyway, not confirming justices in an election year was never a rule until Republicans said it was in 2016, and then said it wasn’t in 2020. What kind of rule is that?
If Democrats respect this custom even in a vague, symbolic way, they’re being patsies. If Justice Breyer steps down in July, 2022, Democrats should confirm his replacement in August. Republicans will hoot and holler, but Democrats have the votes and there’s no filibuster for Supreme Court nominees anymore. You can thank Moscow Mitch for that one.
(Sidebar: If Senators Manchin or Sinema stand in the way of confirming a duly nominated and breathing nominee, either in 2021 or 2022, my head will explode like Willem Dafoe’s in the unedited version of Wild at Heart.)
Besides, 2022 is a congressional election, not a presidential one. The fake rule that never exists except when Mitch McConnell wants it to doesn’t even apply.
Finally, a Supreme Court confirmation in 2022 would help Democrats in the election.
Gone are the days when only conservatives paid attention to the Supreme Court. It took several travesties—the repulsive Garland snub, the Kavanaugh rape (non-)trial drama, the desecration of RBG’s dying wish—but Democrats now care about it too. They’ll care even more if, as expected, the Supreme Court sharply curtails abortion rights in the 2021-22 term.
This issue will be a winner for Democrats. It will drive people to the polls. It will galvanize women, possibly including some of the centrist Soccer Moms/Panera Moms/Karens who might otherwise vote Republican. Roe v. Wade may be overturned a year from now, or if not overturned, at least severely limited. The power of the Supreme Court to control women’s lives will be very, very clear.
And it won’t just be abortion. The court has already taken a major gun case for next term, and may well invalidate a host of extremely popular gun control measures on the obviously wrong basis of the Second Amendment. The court is likely to move far to the right on religion this month in its long-expected Fulton v. Philadelphia decision, which will almost certainly allow federally funded adoption and foster care agencies to turn away gay and/or non-religious couples. And who knows what will happen on matters of immigration, voting rights, environmental laws, and a host of other areas—except that with a 6-3 conservative majority, the odds are it won’t be to liberals’ liking.
In other words, a referendum on the Supreme Court is exactly what Democrats should want in 2022.
It’s will also be valuable for what it isn’t, namely, a referendum on cancel culture, critical race theory, and transgender kids playing sports. Republicans have distorted all of these things so outrageously that they no longer resemble anything in actual reality—most tragically in the case of trans kids, who are being demonized and disgraced right in the middle of so-called Pride Month.
But tragically, the fun-house versions of these issues are indeed winners for the GOP side, which obviously is why they’re creating them. If 2022 is about Dr. Seuss and other fantasies, Democrats are going to lose. If it’s about reality, they will win.
For these reasons, I’m on board with asking Justice Breyer to retire next year, but not this year. True, tomorrow never knows; a lot of unforeseen things could happen between now and next year. But we do know some of the things that will happen, at least when it comes to the Supreme Court. Waiting another year is more respectful, more courageous, and more politically advantageous than pushing a distinguished justice out the door before it’s absolutely necessary.
There may well come a time when Justice Breyer should step aside for the good of the values that he has dedicated his life to preserving. But that time is not now.
