As soon as Chief Justice John Roberts Jr. told Joe Biden, “Congratulations, Mr. President,” after administering the oath of office at the inauguration, I thought: Now Stephen Breyer can retire.
After all, the 82-year-old Supreme Court justice and longtime Cambridge resident has had a long and distinguished career of which to be proud, including nearly 27 years on the high court. He has penned crucial opinions on issues like abortion access, has spoken out about the need for the court to respect precedent on issues including abortion rights, and has repeatedly decried capital punishment as cruel, arbitrary and systemically racist.
But Washington is still reverberating from the impact of Justice Ruth Bader Ginsburg’s death in September, which gave Donald Trump — with a strong assist from then-Senate majority leader Mitch McConnell — the opportunity to leave a longstanding conservative thumbprint on the court with the appointment of Trump’s third nominee, Amy Coney Barrett.
That spurred an election-year debate over how to reform the court to shield it from the procedural shenanigans that allowed McConnell to block Barack Obama’s nomination of Merrick Garland to fill the seat of the late Justice Antonin Scalia and fast-track Barrett’s installation into the seat Ginsburg held — both during presidential election years.
Finally, after decades of failing to recognize the Supreme Court as crucial an election issue as Republicans have, Democrats seemed to see the light and give the high court the political attention it has always deserved — albeit too late.
Then Biden won, and there was nothing: not from Biden, who sidestepped the issue of court reform on the campaign trail, saying that he would create a bipartisan panel to look into it, not from Democratic lawmakers, and not from Breyer. Some progressive activist groups like Demand Justice issued statements that essentially told Breyer: “Thank U, next.” But that’s it.
Meanwhile, Republicans are on it. On Monday, several GOP lawmakers, including former Massachusetts governor and now Utah senator Mitt Romney, introduced a constitutional amendment that would limit the number of Supreme Court justices to nine, an effort to prevent Democrats from “packing” the court with more justices. Biden, by the way, has expressed reluctance about court packing. Still, the GOP is throwing down the gauntlet.
Breyer is no stranger to politics, having served as the Senate Judiciary Committee’s chief counsel under Senator Edward Kennedy before becoming a judge. So clearly, the Bill Clinton appointee understands the importance of giving Biden, who pledged to appoint the first Black woman to the court, an early chance to leave his own mark. It wouldn’t change the court’s 6-3 rightward ideological bent, but it would make the bench more diverse and a lot younger.
There is precedent: Justice David Souter, a Republican nominee who became one of the court’s most reliably liberal justices (and the reason why Republicans have pushed staunchly conservative judicial nominees ever since), retired in 2009, apparently to give the newly elected Obama the chance to fill his seat.
And with Democrats holding only a razor-slim majority in the Senate, depending heavily on Vice President Harris’s tie-breaking vote, there is no time to waste.
That point was underscored Tuesday when Senator Patrick Leahy of Vermont fell ill and was hospitalized, causing Democrats to hold their collective breath. Leahy — who at 80 is the second oldest Democrat in the Senate after 87-year-old Senator Dianne Feinstein of California — was quickly released and returned to work the next day, saying he’d been given a “clean bill of health.” But that episode should be a warning to Democrats of just how fleeting the majority it needs to quickly confirm Biden appointees really is.
Breyer suffers no known serious health issues, though Supreme Court justices are not required to say if they do. But he can be rather accident-prone.
Back in 1993, Breyer was struck by a car while riding his bike near Harvard Square, leaving him with a punctured lung and broken ribs. He suffered another biking spill in Cambridge in 2011, breaking his collar bone. And in 2013 — again on a bike, but this time at the National Mall in Washington — Breyer had another mishap, which left him with a broken shoulder.
Breyer has been through enough, as have the Democrats, who fear the loss of the Senate majority will once again give McConnell the gavel and the power to block or stall Democratic-nominated judicial nominees. I wonder if anyone who has the justice’s ear will remind him of that.