Analyzing Justice Breyer’s Retirement

MONMOUTH, Ill. – The forthcoming official announcement of the retirement of Supreme Court Justice Stephen Breyer is just the tip of a political iceberg, say two Monmouth College political science professors.

FILE PHOTO: Associate Justice Stephen Breyer poses during a group photo of the Justices at the Supreme Court in Washington, U.S., April 23, 2021. Erin Schaff/Pool via REUTERS/File PhotoThe 83-year-old Breyer, who has served on the Supreme Court since being appointed by President Clinton in 1994, is expected to announce his retirement this week. He will serve through the remainder of the current term, with the next term beginning Oct. 3.

Of the three liberals on the nine-member court, Monmouth political science professor Andre Audette said Breyer “was seen as the most toward the center.”

“So this would be a way for the Democrats to push the court in some ways more to the left, bringing in a younger person with more liberal views,” said Audette, who teaches courses on the U.S. Constitution.

But it won’t be easy, as a CNN story about Breyer’s resignation referred to “a seismic confirmation battle” for his replacement. However, the timing might not allow it to reach the lengths of a thwarted attempt by the Obama administration to nominate Merrick Garland to the Supreme Court during the presidential election year of 2016.

“Even as the nomination may mobilize Democrats, who might have otherwise been less enthusiastic about the midterms, it will also counter-mobilize Republicans, who likewise see this high-profile term of the Court as important to their political objectives.” – Andre Audette

The nomination of Garland to replace Justice Antonin Scalia, who died on Feb. 13, 2016, was one of the longest confirmation delays of a Supreme Court nominee. It ultimately ended after 422 days with the Senate confirming President Trump’s nomination of Justice Neil Gorsuch.

Audette believes Republicans could try to go that route again, but with the 2024 presidential election nearly three years away, that is unlikely to happen. Audette said, “A lot of people are angry that Breyer didn’t retire last year,” which would have virtually assured that an appointment by President Biden would have been successful.

“Depending on the timing of the confirmation vote, this places the Court at the forefront of the 2022 election, said Audette. “Even as the nomination may mobilize Democrats, who might have otherwise been less enthusiastic about the midterms, it will also counter-mobilize Republicans, who likewise see this high-profile term of the Court as important to their political objectives. Even if they won’t be able to block a nominee, it will still raise the stakes on future Court politics.

Audette’s department colleague Robin Johnson, who teaches classes on elections and political parties, said the ripple effect of Breyer’s announcement will be a stern test for the Democratic party.

“My immediate thought was that the progressive groups, the Biden administration and Democratic leadership better hope Senators (Joe) Manchin (of West Virginia) and (Kyrsten) Sinema (of Arizona) have extremely thick skins or short memories after the vitriol aimed their way after they refused to change the rules on the filibuster,” he said.

“It’s really just been in the last 20 years with the rise of polarization in the U.S. that there’s been this contention of nominees,” said Audette. “Supreme Court appointments used to be almost unanimous.”

“My immediate thought was that the progressive groups, the Biden administration and Democratic leadership better hope Senators Manchin and Sinema have extremely thick skins or short memories after the vitriol aimed their way after they refused to change the rules on the filibuster.” – Robin Johnson

What is expected to be a very contentious appointment process will heat up along with the summer weather.

“The vetting process will begin before Justice Breyer retires, and I suspect they’ll bring him in on the conversations as a courtesy they extend to Justices,” said Audette. “Over the summer, maybe late in the summer into the fall, is when we’ll see the confirmation hearings.”

Of note, too, said Audette, is Biden’s campaign promise to nominate the first Black woman to the Supreme Court.

“This would continue a recent push to make the Court more reflective of the diversity of the American people,” he said.

Audette said Breyer’s announcement is not only interesting on the political front, but on how the Supreme Court itself is perceived, as well.

“It comes at a time where there are some concerns about the Court’s legitimacy among the public,” he said. “As the court takes up several high profile cases about abortion, the Biden administration’s vaccine mandate, and other contentious issues, some have begun viewing the justices as primarily political actors. These issues will no doubt come up in the confirmation hearing and in the election. It may also renew calls that were made during the 2020 election to ‘pack’ the Court, add term limits, or otherwise change how the Court operates.”