Supreme Court Justice Stephen Breyer has been a somewhat reliable liberal vote in the highest court for almost as long as some of the more radical congressional Democrats have been alive. Yet now he hears the inevitable progressive call: Out with the old, in with the new. Has he gone conservative in his old age? Not quite — though he certainly ruffled a few feathers by warning against the current Court-packing scheme being bandied about by the left. No, this is simply a matter of applying a tough lesson learned the hard way under Presidents Barack Obama and Donald Trump.
Raising the Call
Representative Mondaire Jones (D-NY) said on April 16 that Justice Breyer should retire this summer, giving President Joe Biden the chance to replace him with someone younger — but equally progressive-minded — while the Democrats still hold control of the Senate. Liberal political action group Demand Justice first sounded the call for the 82-year-old to step down and make room for some young blood. It even went so far in early April to order a billboard truck emblazoned with a “Breyer, retire” sign to drive around the Supreme Court.
When asked June 13 by CNN if she agreed with Jones and other progressives demanding that Breyer stand down, Representative Alexandria Ocasio-Cortez (D-NY) said she would “probably lean towards yes.”
A Liberal’s Legacy
Breyer has served in the Supreme Court since President Bill Clinton and a Democrat-led Senate put him there in 1994. He has been a voice for the liberal left in many cases, although, of course, he has disappointed Democrats. He famously sparred with Justice Antonin Scalia over the doctrine of originalism, arguing for a “living Constitution” that can evolve to solve “modern problems,” and he has always supported abortion.
But he’ll turn 83 in August, if he makes it that long. Is that a harsh way to present it? Perhaps, but it’s no less than what those calling for his retirement are thinking. He’s the oldest member of the Court, a decade older than the next runner-up, conservative Clarence Thomas, and 16 years older than the next oldest liberal, Sonia Sotomayor. Trump’s appointees, on the other hand, are the three youngest justices on the bench. If Breyer retires or dies while Biden is in office and Democrats hold the Senate, his replacement will be much younger and probably more progressive to boot. Should he refuse and hold out and the GOP takes the Senate or — gasp! — the Senate and the White House, Democrats will lose their chance.
Jones asked, “My goodness, have we not learned our lesson?” The lesson, of course, is Ruth Bader Ginsburg. She passed at 87 — just five years older than Breyer is now — and gave Trump and the Republican-led Senate yet another Supreme Court confirmation.
Will Breyer heed the call and step down? All signs point to no. He positively bristles when the subject is raised, and he recently delivered a lecture at Harvard Law School in which he insisted that the Supreme Court is above politics. One could easily consider this his explanation for why he refuses to retire: If SCOTUS is not a political body, there is no reason for Breyer to feel obligated to make sure it’s a Democrat who replaces him.
The more liberal leftists have certainly learned their lesson: Don’t wait to replace the old guy; get an appropriately progressive youth in there while you can! And Justice Breyer may be learning a valuable lesson as well: Years of loyalty to the left can’t buy the loyalty of the left. One defining trait of progressives is that they’re always looking for the coming thing. It will always be out with the old, in with the new – and that’s a lesson young liberals would do well to learn today.
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