U.S. Supreme Court Justice Stephen Breyer in March 2015. Bloomberg/Bloomberg via Getty Images
President Bill Clinton had his eye on the future when he nominated Stephen Breyer to the Supreme Court in 1994.
"Judge Breyer will bring to the court a well-recognized and impressive ability to build bridges in pursuit of fairness and justice," Clinton said in announcing his nomination. "In the generations ahead, the Supreme Court will face questions of overriding national importance, many of which we cannot today even imagine."
It's not just the things the court has ruled on that have changed; the atmosphere around Supreme Court confirmations has shifted dramatically.
A few decades ago, nominees often came out of Senate confirmation with large, bipartisan majorities. Breyer was confirmed 87 to 9.
But as Congress has grown more ideologically polarized — and after bitter Obama- and Trump-era battles over Supreme Court seats — those confirmations have become much narrower.
That is why many on the left are hoping that, after nearly three decades on the high court, Breyer has his eye on the exit.
With Democrats holding the White House and the barest of Senate majorities, there is immense urgency among progressives for Breyer to announce his retirement when the Supreme Court term ends around the end of June. That push is amplified by interest and organizing among Democrats that's centered on the courts and has increased as Republicans built a 6-3 conservative majority in the Supreme Court over the last four years.
"If Justice Breyer is to be committed to his judicial ideology, he is going to want to be replaced on the bench by someone who is going to vote to uphold the fundamental right to vote in this country and to protect the rights of the most marginalized members of our society," said Rep. Mondaire Jones, D-N.Y.
Breyer has helped deliver landmark rulings that have broadly pleased Democrats — rulings in favor of LGBTQ rights and reproductive rights, for example. And now, a groundswell of progressives like Jones is urging the 82-year-old Breyer to retire in order to safeguard his seat with a new liberal justice.
The stakes for Democrats were made stark by former President Donald Trump's three Supreme Court nominations — one came after Republicans refused to hold hearings for Obama nominee Merrick Garland in 2016. The other two replaced swing-vote Anthony Kennedy after he retired and liberal Ruth Bader Ginsburg after she died shortly before the 2020 election, swaying the balance of the court toward conservatives. To Jones, that was entirely avoidable.
"President Obama could have had the opportunity to appoint more justices to the Supreme Court than he ultimately did," Jones said. "And that was the result of a decision by senior-in-age justices not to retire and give him that opportunity."
The pressure from Democrats for Breyer to step down is often carefully crafted, with respect for the liberal justice. Connecticut Sen. Richard Blumenthal told The Washington Post in April, "Justice Breyer has been a great justice, and he recognizes, I am sure, the political reality of our having control of the Senate now. But elections always have risks, so hopefully he's aware of that risk and he sees it accordingly."
The push is about making the court a backstop on an array of issues.
"We have our eyes on the Supreme Court around issues around abortion, birth control, health insurance, LGBT issues, immigration, kind of the gamut," said Rachel Carmona, executive director of Women's March.
But any pressure, whether from interest groups, lawmakers or even the White House, may have precisely zero effect on Breyer's decision-making, according to Neil Eggleston, White House counsel for President Barack Obama from 2014 until 2017.
"I don't think a call from the White House or even pressure from interest groups is going to matter much to Justice Breyer," he said. "The way I think about it is, a call from the White House or a call from interest groups are not adding more information that he doesn't already have in connection with what he's going to decide to do."
The Supreme Court justices pose for a group photo on April 23. Erin Schaff/Pool/AFP via Getty Images
Eggleston explained how he considered whether the White House should talk retirement with the elderly Justice Ginsburg during his tenure at the White House. But then Eggleston decided against it.
"It's a little unseemly for a White House to suggest to a justice that they should retire and that the White House didn't have any information that Justice Ginsburg didn't already have, and so I just decided she would decide what she thought was appropriate," he said.
And that may be how President Biden is thinking. White House press secretary Jen Psaki said last month that Biden believes retirement is Breyer's choice.
One group pushing Breyer to step down is Demand Justice, which sent a black and neon-green billboard truck driving around the Supreme Court building last month. The billboard's message: "Breyer, retire. It's time for a Black woman Supreme Court justice," referencing Biden's campaign vow to nominate a Black woman to the court.
"What we're trying to do with tactics like the billboard truck that we had [in April] is to show that this is the time in which Supreme Court justices have in the past announced their retirements," said Christopher Kang, chief counsel for Demand Justice.
He's referring to the end of the term, typically in late June, a time when past justices, including Kennedy, announced their retirements. For his part, Jones thinks next month is when calls from Capitol Hill might get louder.
"I think it is logical to assume that if Justice Breyer decides for some reason not to retire at the end of this term, there will be a chorus of Democrats calling on him to do the right thing and be a good steward of our democracy," he said.
The slim Democratic Senate majority right now also has Kang fearing worst-case scenarios.
"While hopefully we have this majority for until the end of 2022, really this majority could go at any moment, given sort of the potential health or something else that might happen," he said.
Part of Demand Justice's goal is also to further energize Democratic voters around the cause ahead of 2022.
"We're trying to raise awareness among voters and lawmakers right now in particular," he said. "We've seen over the last several years, Democrats in particular have become much more engaged around the Supreme Court."
While exit polls in 2016 showed Trump winning voters most concerned about the court, exit polls from 2020 suggested Democrats gained ground with those voters.
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