His Last Great Deed

Justice Stephen Breyer’s retirement from the Supreme Court reveals sobering news about the current state of a venerable U.S. institution — and presents a unique opportunity for President Joe Biden.

The fact that Justice Stephen Breyer will retire from the Supreme Court is unfortunate in many ways. Above all, it is a capitulation to reality. On the one hand, Breyer is acknowledging what is obvious, but on the other, something he has always denied in public; that the U.S. Supreme Court is ideological and an instrument of party politics.

Breyer was appointed to the court by President Bill Clinton in 1994. Since then, he has tirelessly emphasized that that once appointed, justices must leave their political convictions behind. That was not true in 1994, and today it is almost preposterous to claim that the Supreme Court is above day-to-day politics.

Now Breyer is not naive. During his almost 30 years on the Supreme Court, the majority of his colleagues were nominated by Republican presidents. He knows only too well what it means to be in the minority, and all too often he has witnessed arguments being twisted to suit a particular ideology close hand. Incidentally, both sides are guilty of that. As a result, while the court’s decisions are not always predictable, they are becoming increasingly so.

Time Is Running Out, as the Senate Majority Is Likely To Be Lost in the Fall

Some credit must go to Breyer for continuing to stress the independence of the court, most recently in a book published last fall. The idea was that he himself could at least fulfill this claim. He wanted to lead by example and, through his words and actions, simultaneously bend reality to his will and make it fit with his views.

For this reason, Breyer had rejected the idea of retiring early for a long time. Why should he, anyway? Supreme Court justices are appointed for life, and in his publicly stated worldview, it does not matter who is nominated by whom.

The reality, however, is that the Republicans will probably regain control of the Senate in the fall. Without a majority in the Senate, it will not be possible for the president to appoint anyone to the Supreme Court given the current climate of division in Washington. The Republicans proved that in a brutal way during the last year of Barack Obama’s term in office when they refused to even consider the nominee he chose to fill a vacant Supreme Court seat.

The President Is Looking for Votes from African American Voters

Breyer may continue to talk about the political independence of the court, but his last great deed shows that he knows better. He is 83 years old, and the Democrats are unlikely to be able to nominate anyone for a long time. By retiring, Breyer is giving the president a chance to fulfill his promise to appoint the first Black woman to the court. As cynical as it might sound, that is a good election strategy for Biden; he will need votes from African Americans in November’s midterms.

At the end of a long career, it seems that reality has not bent to Breyer’s will. And what’s more, it seems that in reality, the Supreme Court is above the law.