The Breyer Retirement and America’s Coming Clash

U.S. Supreme Court Justice Stephen Breyer answers a question during an interview with Agence France-Presse at the Supreme Court in Washington, D.C., on May 17, 2012.

The Breyer Retirement and America’s Coming Clash

What will be the outcome of the Supreme Court drama?

United States Associate Justice of the Supreme Court Stephen Breyer announced his retirement last month. Nominated by President Bill Clinton in 1994, the 83-year-old is the court’s oldest justice. Breyer will continue to serve as a justice until the court’s current term ends this summer.

Who will replace him?

President Joe Biden has pledged to appoint a black woman to fill Breyer’s seat. This would be the first such appointment in the court’s history. Biden stated he would do so during his 2020 presidential campaign, calling the appointment of a black woman “long overdue.”

Breyer is older than the average age when Supreme Court justices retire (81 years). So his retirement may not be seen as out of the ordinary. However, this isn’t merely a simple matter of an octogenarian reaching the end of his career and wanting a break. Supreme Court appointments are usually extremely polarizing and contentious, as the nominations of Merrick Garland, Brett Kavanaugh and Amy Coney Barrett showed.

What kind of politicking is surrounding Breyer’s retirement?

The Supreme Court is currently made up of nine justices: Six are Republicans, while three, including Breyer, are Democrats. Three of the Republicans—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—were appointed by President Donald Trump. Many on the left resent Trump for appointing so many. Justice Barrett’s appointment to the court especially stung. Her Democratic predecessor, Justice Ruth Bader Ginsburg, died in September 2020. Barrett went through a lightning nomination and confirmation ahead of the 2020 presidential elections in November. Many Democrats were hoping a newly elected Democratic president could have nominated Ginsburg’s successor. Many view Barrett’s replacement of Ginsburg as a shift of the court to the political right.

The circumstances around the current situation are different. Breyer is a liberal, so Biden’s nomination won’t change the court’s ideological spectrum too much. But why is Breyer retiring now? Especially considering another election will happen later this year.

A Supreme Court justice is nominated by the president but confirmed by Senate vote. Currently, the Senate is evenly divided. Vice President Kamala Harris provides the tiebreaker vote, giving the Democrats control of the Senate (unless one Democratic senator defects). But several Senate seats are up for grabs in November’s midterm elections. Partly due to Biden’s plummeting popularity ratings, many suspect Republicans could regain control of the Senate. This would put some obstacles in the Biden administration’s path. Senate Minority Leader Mitch McConnell suggested last June that if the Republicans were ever to regain the Senate, they could block Biden’s Supreme Court nominations as they did with Merrick Garland in 2016. Many on the right are suspicious Biden will choose a nominee who is a far-left partisan hack.

Breyer’s retirement also comes at the end of a long activist campaign pressuring him to retire. After Senator McConnell’s June comments, Demand Justice, a liberal lobbyist group dedicated to “court reform,” urged Breyer to retire through a statement in Politico. A few months later, Demand Justice sponsored a truck with a giant billboard calling for Breyer’s retirement that drove around the Supreme Court.

Demand Justice started as a venture of the Sixteen Thirty Fund, a lobbyist group that spent over $400 million in 2020 supporting Democratic candidates in that year’s elections. That’s more money than what the Democratic National Committee spent. Sponsors of the Sixteen Thirty Fund include billionaires like George Soros and Pierre Omidyar (the founder of eBay). So, at least indirectly, powerful people supported Breyer retiring. Certain Democrats in the House of Representatives have also been suggesting that Breyer should leave the bench.

One would think it would be more prudent to wait until the results of the 2022 Senate elections. Most of the seats with Democratic incumbents are in traditional “blue” states, like Vermont and Hawaii. By contrast, a number of the seats with Republican incumbents are in “swing states” like Pennsylvania and Wisconsin.

That the Democrats are rushing to replace Breyer so quickly shows they don’t think they’ll do well in the elections. The Senate Democrats are on shaky ground right now. But their haste shows they think they’ll be on even shakier ground very soon. Perhaps the Democrats feel they can’t afford to let what happened with Ruth Bader Ginsburg happen again.

But perhaps the campaign to get rid of Breyer has other motives.

More and more evidence is surfacing of voting irregularities from the 2020 presidential election. If enough comes out, it might make its way to the Supreme Court. This could challenge Biden’s legitimacy as president.

Breyer isn’t considered the most moderate Democrat justice in the court (that would be Elena Kagan), but he was an appointee from nearly 30 years ago. Some higher-ups in the Democratic Party might feel he’s from an earlier era and may be unreliable. Perhaps they want a justice they could more easily control.

Nothing’s certain at this point. We’ll have to wait and see who Biden picks. But either way, Breyer’s announcement shows that the Democrats are preparing for a clash.

This is reminiscent of another interesting episode at the Supreme Court. In 1987, President Ronald Reagan nominated respected Judge Robert Bork. But the Senate Democrats, led by Sen. Edward Kennedy, demonized Bork as a racist dictator. The campaign led to Bork’s nomination failing.

That incident was a watershed moment in American political history. A law professor called the Bork nomination hearing “the decisive moment in politicizing the process of judicial selection” that “poisoned the atmosphere for judicial confirmations ever since.”

“Why was Robert Bork so demonized?” Trumpet editor in chief Gerald Flurry asks in his booklet America Under Attack. “Why was his nomination to the Supreme Court turned into a witch hunt, when it was obvious he was more than qualified? The reason was that the radical left feared him.”

The Supreme Court is supposed to be the final say on how to interpret the law of the land. But the radical left has politicized the courts to defend programs like abortion, same-sex “marriage,” gun restrictions and others. Many of their most cherished policies only exist because of Supreme Court decisions. Not controlling the Supreme Court makes the radical left extremely vulnerable.

The circumstances surrounding the Breyer retirement announcement suggest that, like in 1987, the radical left fears something. What exactly they fear remains to be seen, but they’re up to something. Please request a free copy of America Under Attack to learn more about America’s political crisis and where it is leading.