Harvard Law School professor Randall Kennedy shocked the legal world in 2011 when he demanded the immediate retirement of two members of the liberal wing of the U.S. Supreme Court: Ruth Bader Ginsburg and Stephen Breyer.
Saying it was “the thing responsible for them,” Kennedy argued in an essay for The New Republic that the septuagenarians – who were both nominated by Bill Clinton – should step aside, then Democratic President Barack Obama could nominate the youngest Liberals. to replace them with living seats on the nation’s highest court.
Nor did he heed the call. Last year, Ginsburg he is dead age 87 and his post was occupied by Donald Trump a few days before the November presidential election with Amy Coney Barrett, tilting the balance of the nine-member bank 6-3 in favor of the Conservatives.
Now, with Democrats in the White House and controlling the Senate by the narrowest of margins, Breyer, 82, is again making resignation requests after nearly 27 years in court.
As the Supreme Court nears the end of his term, he has been targeted by a fierce public pressure campaign that presents political challenges for President Joe Biden as progressives worry about a Supreme Court ruling dominated by conservative throughout voting rights and guns to affirmative action and abortion.
“We’ve seen the tragic consequences of rolling the dice, and that simply can’t be allowed to happen again,” said Tré Easton of the progressive group Battle Born Collective. “The GOP does not pretend that the court is this apolitical institution, and the left, the progressives, the Democrats, cannot afford to pretend that it is apolitical.”
These calls became stronger this week after Mitch McConnell, the first Senate Republican, suggested he stand in the way of a Biden candidate if his party takes control of the upper house in the midterm terms. next year. Judges of the Supreme Court are chosen by the presidents but need confirmation by a simple majority in the Senate.
McConnell famously refused taking on Obama’s nomination of Merrick Garland to fill the vacancy created by the death of Conservative Antonin Scalia in 2016, setting the stage for Trump to choose Neil Gorsuch instead.
McConnell’s latest comments have sparked outrage among progressives. “Anyone who has ever doubted that Stephen Breyer would not retire could end up in disaster should pay attention to Mitch McConnell,” said Brian Fallon, executive director of the left-wing Demand Justice group.
Fallon’s group led a “Breyer Retiree” campaign, launching one advertising campaign and hired a billboard truck to surround the courthouse with the message: “Breyer, retire.” It is now a black woman of justice of the Supreme Court. There is no time to lose. ”
A number of law scholars have joined, including the University of California at Berkley School of Law Dean Erwin Chemerinsky, who wrote in a Washington Post op-ed last month Breyer had to “learn from the error of the Ginsburg justice” and resign now, warning: “With a 50-50 Senate, anything is possible.”
Biden made the vow to nominate the first black woman in court in case of vacancy. Ketanji Brown Jackson, widely seen as one of the first, was confirmed earlier this week by the Senate to serve on the important federal appeals court in Washington DC.
A Breyer’s retirement could be one of Biden’s only opportunities to appoint a Supreme Court justice in the near future, except for some unexpected developments. Clarence Thomas, declared curator appointed in 1991, is the second oldest on the bench – and 10 years younger than Breyer.
Trump had the rare opportunity to fill three vacancies in his four-year term, following the deaths of Scalia and Ginsburg and the retirement of Anthony Kennedy. Like many Republican lawmakers, he campaigned with the promise of a conservative court to treat Republican-based voters who sit firmly on issues such as weapons and abortion.
Meanwhile, Biden has largely avoided going directly into court-related matters, although earlier this year he created a bipartisan commission to consider reforms, including the addition of more Supreme Court justices.
Asked in April about the president’s opinion on calls for Breyer to resign, Jen Psaki, White House press secretary, said it was the court’s decision to do so. This week, Biden said of McConnell’s veiled threat: “Mitch hasn’t been anything but ‘no’ for a long time, and I’m sure he means exactly what he says. But we’ll see.”
Supreme Court judges are typically strict, rarely giving interviews or commenting on questions. Breyer, a Harvard Law School graduate and former professor whose CV includes stints in the U.S. Department of Justice and the U.S. Circuit Court of Appeals, said little about his plans.
He made headlines earlier this year when he gave a lecture at Harvard entitled “The Authority of the Court and the Danger of Politics,” in which he rejected calls to “pack” the court with judges. additional, and defended the independence of the institution from the White. Home and Congress.
“If the public sees judges as politicians in robbery, their confidence in the courts – and in the rule of law itself – can only diminish, diminishing the power of the court, including its power to act as a control in other branches, ”Breyer said.
Jonathan Turley, a professor at George Washington University School of Law, said the speech suggested that Breyer could not take kindly to the political campaign demanding his departure.
“There’s no question about Breyer’s intellectual perspective or ability, so the question is whether he feels he should leave the court,” Turley said. “Justice Breyer can conclude that it is more harmful for the court as an institution for him to give in to this kind of campaign than for him to stay in court.”