Column: Liberals Underestimate Justice Breyer’s Value
Justice Breyer, 83, has insisted he will retire from the Supreme Court on his own terms. Source: ABC News
The sudden passing of Justice Ruth Bader Ginsburg last September, less than two months before the election, stunned several people. Additionally, ideas about the court’s next appointee effectuated among liberals following the swift confirmation of Justice Amy Coney Barrett. This included attempting to compel Justice Stephen Breyer into retirement, thereby allowing President Biden to appoint his successor. The unprecedentedly quick confirmation of Justice Barrett sparked fear among liberals due to the court’s 6-3 conservative majority; and with Justice Breyer’s age, they fear he will die following the 2024 election which could possibly result in Republican control of the White House.
At age 83, Justice Breyer is currently the oldest serving justice by nearly a decade. Concerns over his death are warranted considering Justices Ginsburg and Scalia died at the ages of 87 and 79, respectively. Nonetheless, Democrats are forgetting Justice Breyer’s value on the bench. It is understandable why Democrats want Justice Breyer to retire and after Justice Barrett’s brisk confirmation, it appears that Republicans would reciprocate Democrat efforts if ever in the same situation. However, it is important that Justice Breyer’s role is not dismissed easily.
Next to Justice Clarence Thomas, Justice Breyer is the most senior justice on the bench, and the most senior in the “liberal wing.” Thus, Breyer is the third justice to be heard and cast a vote, after Chief Justice John Roberts and Justice Thomas. This position allows Justice Breyer the opportunity to influence other justices before they are able to speak and cast their votes. Furthermore, as the senior “liberal” justice, Breyer has the responsibility of determining which justice writes the opinion, provided that either Chief Justice Roberts or Justice Thomas do not vote in accordance with Justice Breyer on a decision.
Justice Breyer possesses a lot of sway due to his seniority and his reputation. In 27 years on the bench, he has forged a reputation enviable by many in Washington. Justice Breyer is pragmatic and attentive about his decisions; he examines each case and thoroughly weighs the consequences. Throughout his tenure, he has maintained an imperturbable character. The court, especially the “liberal wing”, desperately requires someone like Justice Breyer to maintain its authority.
This raises another issue: the integrity of the court. The court’s reputation has taken some blows in recent years due to its politicization; examples include the confirmations of Justices Gorsuch and Barrett. The judiciary is supposed to be the nonpartisan branch of the three branches; however, politicians and the media have made it appear partisan. Characterizing justices based on the president who appointed them and making confirmations based along party lines are blatant examples of the court’s politicization, one that Justice Breyer vehemently opposes. In fact, Justice Breyer insists the court is nonpartisan. He claims the justices’ differing opinions are a result of jurisprudence, not political affiliation or ideology. Therefore, contrary to popular belief, he does not believe the 6-3 majority is partisan.
He supports this claim by referring to the court’s refusal to hear President Trump’s voter fraud claims, signifying the court’s unity. Furthermore, the data support Justice Breyer’s claims; as of June 29, 2021, the Supreme Court unanimously decided more cases in one term than in the last seven years. During the latest term, 67% of decisions were either unanimous or decided with an 8-1 majority. This is substantially higher than the 2019 term where the percentage was only 46%. Note, the new term contained six justices appointed by Republican presidents and three by Democrats.
Justice Thomas made similar conclusions about the politicization of the court. He claims there are issues, but nonetheless the court functions. He attributes this politicization to the media and argues that the media often makes justices appear as politicians. This leads the public to believe the court’s job is to make policy, rather than interpret the law. This is what damages public perception of the court according to Justice Thomas.
Justice Breyer believes the legitimacy of the Supreme Court is declining due to the politicization both he and Justice Thomas have described and feels it is important to uphold its integrity. Efforts such as “packing the court”, which Justice Breyer is an outspoken critic of, and the urging of Justice Breyer to retire are examples of the court being politicized.
For these reasons, Justice Breyer is more valuable than liberals realize. He continually defends the court and ensures it maintains its legitimacy while also acknowledging there are flaws. Justice Breyer may be old, but he is invaluable and well-respected. Also, just because a younger justice can replace him, does not mean they will be as consistent. Is there a possibility his seat may be taken by a Republican president’s nominee? Yes, but right now, he is still more than capable of doing his job.