The pressure campaign started months ago. Outside the US Supreme Court in April, a billboard truck with a black-and-white image of 82-year-old Justice Stephen G. Breyer circled the grounds, neon green letters blaring, “Breyer, retire.”
That unsubtle message, paid for by a progressive group, has been adopted by liberal law professors and politicians, fueled further by the renewed threats by Republicans to block President Biden from appointing a Supreme Court justice.
If anyone is built to withstand the pressure, it is Breyer, who has given no indication he plans to retire when the Supreme Court’s term ends in the next few weeks. The senior member of the court’s shrinking liberal minority, Breyer railed against public misperceptions of justices as “junior level politicians” just this past April during a two-hour lecture at Harvard Law School, and has expressed a deep fear that the nation’s highest court could lose public trust if its members are seen to be guided by politics.
Nonetheless, the pragmatic and likable jurist, who has written more than half a dozen books on the preservation of democracy and the rule of law, is faced with the very high stakes and hyperpolitical moment he has long sought to remain above.
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The consternation among Democrats over Breyer escalated last week, as Republican Senate minority leader Mitch McConnell acknowledged he may not let Biden replace the justice if Republicans win back the Senate next year.
“I think it’s highly unlikely — in fact, no, I don’t think either party, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election,” McConnell told conservative radio host Hugh Hewitt, while declining to answer whether he would allow Biden to replace a justice in 2023.
Those threats have painted a horrifying prospect for many Democrats: that McConnell, after blocking former president Barack Obama from filling a Supreme Court seat by citing the upcoming elections and then reversing his own standard to replace Justice Ruth Bader Ginsburg with a Donald Trump appointee in 2020, will again change the rules and block Biden from making a pick.
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McConnell’s hardball tactics, which legal experts say have not been seen since the days of the Civil War and Reconstruction, have given Republicans a 6-3 majority on the nation’s high court, a commanding advantage that the party has pursued since the late 1960s. The dizzying turn of events has pushed some Democrats to rethink their approach to the court.
Thirteen progressive organizations, including the Sunrise Movement, Justice Democrats, and Black Lives Matter, ran an ad in Politico on Tuesday calling on Breyer to retire, even though they credit him with being a critical voice on the court for women and people of color. Nearly 20 law professors and political scientists on Friday published an ad in The New York Times, calling Breyer “a remarkable jurist,” but one who should head for the exit “with future control of a closely divided Senate uncertain.”
They argue the court is already politicized, and Democrats will continue to lose power if they don’t wake up to that fact.
“Look at how the Republicans blocked Merrick Garland,” Obama’s ill-fated nominee in 2016, said Erwin Chemerinsky, dean of the UC Berkeley School of Law and one of the letter’s signees. “Look at how the Republicans pushed [Supreme Court Justice] Amy Coney Barrett. Breyer retiring at the end of his term is no more likely to politicize the court than those things.”
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Not all believe the tactics will work; some worry the pressure campaign could even backfire on Breyer, who has long written about the need for courts to be apolitical, and whose long view of history insulates him from the tweets, cable news chyrons, and billboard vans of the current age.
“Suppose he wanted to retire? Do these calls make it easier or harder for him? In some ways they make it harder for him,” said Akhil Reed Amar, a professor of law and political science at Yale University who clerked for Breyer when he was a federal judge in Boston.
Breyer has publicly spoken out against the proposals of progressives urging Democrats to fight back by adding seats to the court.
“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” he warned in April.
He has long said he doesn’t believe justices should time their retirements politically. “It’s not really our job,” Breyer said in a CBS interview in 2015 about the pressure his then-colleague Ginsburg was under to retire during the Obama administration. “Your job is to treat administrations not as political entities, that you favor some politician or you disfavor another politician.”
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Still, McConnell’s recent statements “could change the calculus a bit,” said Kate Shaw, a professor at the Benjamin N. Cardozo School of Law who served in the White House Counsel’s Office under Obama.
“McConnell’s recent suggestion that he’ll refuse to fill the seat if the GOP controls the Senate means that delay increases the chances of another hyper-polarized confirmation process, which is the last thing Breyer wants,” Shaw said.
Breyer’s closest friends and former clerks say they wouldn’t dare to get into Breyer’s mind, and refer to his retirement as a deeply personal decision. But if they can offer any insight into his thinking as he finds himself at the center of a pressure campaign it’s this: He will do whatever he believes is best for the institution and the common good.
“His code words are common sense, decency, democracy,” said Charles Fried, a professor of law at Harvard who served as US solicitor general under Ronald Reagan and has known Breyer since he was a law student. “He is a very practical person. If you look at some of his writings, he is very interested in what the practical effect of what his decisions will be.”
Breyer’s career was made at a very different time for the US Senate, and for the country’s political institutions. The son of a San Francisco lawyer, Breyer graduated magna cum laude from Harvard Law School in 1964 before heading off to clerk for Justice Arthur J. Goldberg. He went on to teach antitrust and administrative law at Harvard and served as a prosecutor in the Watergate case that led to the resignation of former president Richard Nixon.
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Breyer later served as chief counsel for the Senate Judiciary Committee, when it was chaired by Senator Edward M. Kennedy. He was so well-liked by both Democrats and Republicans, liberals and archconservatives, that he was quickly confirmed as a federal judge in 1980 — even after former president Jimmy Carter, who nominated him to the bench, lost his reelection bid.
The jurist was appointed to the US Court of Appeals for the First Circuit, which reviews cases from several New England states and Puerto Rico. As chief justice, he oversaw the design and construction of the new federal courthouse in Boston, a project his friends said he was thrilled to work on as he is as passionate about architecture as he is about French literature.
Even then, Breyer preferred to work with his colleagues over dissenting, his former clerk Amar recalls.
“His image of the court is what the Senate used to be,” Amar said. “You could think of him a little like Joe Biden from 30 years ago or [Senator] Joe Manchin today — a Democrat who is trying to work with Republicans. He tries to basically find common ground if he can.”
President Bill Clinton nominated Breyer to the Supreme Court in 1994, back when the Senate often confirmed nominees with significant, bipartisan majorities, pointing to his “well-recognized and impressive ability to build bridges in pursuit of fairness and justice.”
Breyer was confirmed by an 87-to-9 vote.
“He has never been the leader of what people would regard as the liberal flank,” said Laurence Tribe, a longtime Harvard law professor and close friend. Still, “he has been a consistent and rather predicable liberal on matters of racial equality.”
And though he was often seen as a foil to the conservative former Supreme Court justice Antonin Scalia and his rigid interpretations of the law, Breyer hasn’t shied away from sometimes voting with conservatives and often takes the middle road on many issues. He isn’t a theorist or a jurist committed to any one ideology, his friends and former clerks said. Instead, he prefers to draw from a variety of sources, and his view of the Constitution is that it is designed to make democratic processes work better and empower people to solve society’s problems.
“He is a true believer in our democratic system,” said Pratik A. Shah, a former Breyer clerk who is now head of the Supreme Court and Appellate Practice at the law firm Akin Gump. “It is not just lip service with him.”
Shah remembers Breyer often removed zingers from his dissents that he and other clerks inserted to bite back at the majority opinion. On the bench, Breyer has not been interested in one-upping other justices or offering snappy one-liners, despite disagreeing with them on cases dealing with affirmative action, abortion, and other issues.
“Where other justices try to poke holes in the advocates’ arguments, trying to advance their own views, he genuinely is engaged in an exercise of inquiry about how best to solve the problem that the case presents,” said David Cole, who has argued cases before Breyer and now serves as the national legal director of the American Civil Liberties Union.
So far, the court has avoided the extreme polarization of Congress. Even though high-profile cases touching on voting rights and abortion have fallen along partisan lines, justices often decide lower-profile cases unanimously.
But some believe Breyer has gone out of his way — somewhat naively — to portray the court as above the political fray at a time when the confirmation process is anything but.
“I think the Supreme Court is a political institution — and at some level Breyer recognizes it as well,” said Christopher Kang, chief counsel for Demand Justice, an advocacy group that formed in 2018 to push back against the ideological right tilt on the court and funded the billboard van. Kang said he did not believe the group’s tactics would backfire.
So far, Biden has followed the lead of Obama, who declined to encourage Ginsburg to retire during his time in office, by not pressuring Breyer to step down. “He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” White House press secretary Jen Psaki said in April. Biden has promised to nominate the first Black woman to the Supreme Court should he get a vacancy.
The clash over Breyer’s retirement reflects a broader rift among Democrats over whether to pursue sweeping structural reforms, such as expanding the court or abolishing the Electoral College, to counter Republicans, who are passing laws to make voting harder in many states on the false pretext that the 2020 election was fraudulent and who have dominated judicial appointments at the federal level.
“When we wanted to do big things, we ceded ground to the moderates under the guise of bipartisanship in hoping that Republicans would come along,” said Nick Rathod, a former special assistant and deputy director of intergovernmental affairs for Obama. “And that is just such old thinking. There is no such thing as bipartisanship anymore in Washington. And we have to play the game the way it is currently being played. We can’t play an old game.”
To that end, Senator Ed Markey, a Democrat from Massachusetts, has introduced legislation to increase the number of Supreme Court justices from nine to 13 — an effort that has picked up little to no support from other Senate Democrats so far.
But Markey is not joining the pressure campaign on Breyer. “Only he can answer when he will retire,” he said. “What I do know is that we need to answer Senator Mitch McConnell’s unprecedented theft of two Supreme Court seats by restoring balance to the court and expanding it to 13 seats.”
During his lengthy lecture last spring at Harvard Law School, Breyer could not have seemed further removed from the panic of Democrats in Washington who are still clinging to hope that he will retire and foil McConnell’s plans. In between references to the Roman philosopher Cicero and French political theorist Alexis de Tocqueville, the octogenarian but still energetic judge summoned up a century of American history while arguing against court packing, referencing President Franklin Roosevelt’s attempts to do the same thing 80 years ago.
Staying above the political fray is difficult for the courts, but will pay off in trust from the people, he argued. And for the judges at the center of it?
“Do not look for or expect popularity,” Breyer conceded.