In the US, a 6-3 Supreme Court; in Taiwan, a 15-0 Judicial Yuan*

U.S. Supreme Court Justice Stephen G. Breyer has decided to retire this summer. Although the 83-year-old Breyer is in good health, Democrats currently control the Senate and the White House, and President Joe Biden can choose his replacement. If Republicans were to regain control of the Senate in the 2022 midterm elections and the White House in the 2024 presidential election, respectively, the situation would be vastly different. Under those circumstances, if Breyer were to retire due to old age or illness, or if he were to pass away, he would undoubtedly be replaced by a conservative. Right now, he has no choice but to step down and let Biden nominate a liberal justice to fill his seat, preventing the Supreme Court from being dominated by conservatives.

President George H.W. Bush served four years in office and appointed two Supreme Court justices. Presidents Bill Clinton, George W. Bush and Barack Obama all served eight years in office and appointed two Supreme Court justices. Although Donald Trump only served four years as president, he appointed three justices to the Supreme Court; what's more, the Trump appointees are all in their 50s and will likely serve on the court for years to come. The most veteran conservative justice, Clarence Thomas, who has served 30 years on the Supreme Court, is 73 years old. One can infer that even if the Supreme Court maintains its current balance — six conservatives to three liberals — it will still be firmly controlled by the right for the next 20-odd years.

At this point, conservatives have a 6-3 supermajority on the Supreme Court, making conservative control of the court an irreversible trend; only the speed and scope of the conservative expansion remain to be seen. Of course, there are optimists who see Breyer’s decision to retire after 27 years on the Supreme Court and wonder if his right-leaning colleagues might follow in his footsteps. If a conservative justice were to take the initiative in retiring, thereby putting the legitimacy of the Supreme Court before ideology and politics, the decision would limit the pace and extent of the court’s conservative movement. In this scenario, the court might avoid devolving into what Chief Justice John Roberts calls “a political branch of government.”

Breyer has always been an institutionalist. He advocates for a “workable democracy” in which the three branches of government do not only maintain the system of checks and balances; they also cooperate and divvy up responsibilities. If one branch becomes too powerful compared to the other two, the democracy could be reduced to a constitutional dictatorship. Since the Supreme Court is the final arbiter of the law, its justices cannot behave as “politicians in robes” or let the court become like Congress, an institution ruled by partisanship and factionalism. If justices allow the Supreme Court to become politicized, they will lose the public’s trust and tarnish the court’s legitimacy.

Breyer has been deeply worried about the court’s rightward movement these past few years; however, he often cites Trump appointee Neil Gorsuch’s recent vote on LGBT workers’ rights as proof that justices don’t just vote according to personal ideology. Gorsuch joined the other justices in opposing workplace discrimination against gay and transgender employees. Commenting on the case, Breyer rhetorically asked: “Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” Moreover, recent studies show the court is not as ideologically skewed as some might believe. Researchers analyzed all the Supreme Court decisions handed down since the recent addition of Amy Coney Barrett, the sixth conservative justice. Although 24% of the cases were decided by a 6-3 vote, 47% of cases were decided by a 9-0 vote. Clearly, consensus is far more frequent than disagreement among the justices. Besides, the three liberals haven’t been relegated to the roles of eternal dissenters, powerless against the conservative supermajority; they are often joined by Roberts and the three Trump appointees, becoming part of a five, six or seven vote majority.

The Democrats currently control the White House, but that may very well change after the 2024 presidential election. The Democrats control both houses of Congress, but that may change after the 2022 midterm elections. On the other hand, conservatives have a supermajority on the Supreme Court that may last 20 years. Even if the executive and legislative branches undergo drastic changes, conservatives will have tight control over the judicial branch for a long time to come. If justices insist on imitating politicians and moving toward political extremes, then Breyer’s vision of a “workable democracy” will vanish into thin air.

In Taiwan, the Judicial Yuan has 15 grand justices, four of whom were appointed by former President Ma Ying-jeou and will leave office next September. President Tsai Ing-wen will choose their replacements; once Tsai’s new appointees take office, all 15 of the grand justices will have been appointed by her. Would Breyer approve of a court comprised of 15 justices, all appointed by a single president? If a 6-3 conservative majority on the U.S. Supreme Court has people worried sick, how could a 15-0 majority in the Judicial Yuan not leave them completely terrified?

The author is a visiting professor at Shih Hsin University in Taipei.

*Translator’s Note: The Judicial Yuan is the judicial branch of the Taiwanese government and has a total of 15 grand justices.