Yesterday, Supreme Court Justice Stephen Breyer announced he would soon be handing in his gavel after nearly three decades on the bench of our highest court. Breyer has been a consistently progressive voice on the court throughout his term, a proponent of the judicial philosophy that the Constitution and other laws grow and change with the times.
His retirement, then, comes as a relief to Democrats and progressives who, after seeing President Trump appoint three conservative justices, feared that Breyer might do as Justice Ruth Bader Ginsburg did: stay on too long, only to be replaced by a conservative. President Biden will nominate a new justice shortly, and he will almost certainly uphold his campaign promise to nominate the first Black woman to the bench.
As strange as it may seem to actually assume that a President will uphold a campaign promise, in this case, there’s reason. A Supreme Court appointment will be easy compared to President Biden’s myriad other unkept promises. While a nominee must be confirmed by a majority vote in the Senate, confirmations are not subject to the filibuster, which would effectively impose a 60-vote supermajority requirement.
Democrats removed the rule for lower court appointments as soon as it suited them in 2013, and Republicans did the same for the Supreme Court in 2017. Today, as a result of the most-dreaded tit-for-tat escalation of filibuster reform, a simple majority can assent to a justice’s appointment, unbeholden to a tyranny of the minority.
Thus, unlike with most modern presidents’ major legislative promises, one can actually expect presidents to keep their word when it comes to court appointments.
As a result, Democrats and progressives are treating Justice Breyer’s retirement as a big win, with celebratory op-eds and tweet threads galore. The biggest immediate benefit will be representation for Black women in particular, which could translate to improved voter turnout in that demographic for Democrats in the midterms.
In terms of real, hard political outcomes, however, things are murkier. It could one day make a difference that Breyer is replaced with a progressive rather than conservative, but the conservative / progressive balance on the court isn’t changing. If Biden’s nominee is confirmed and Breyer retires, there will still be six conservatives on the court and three progressives.
Beyond the obvious angle of a partisan win or loss, though, a deeper look suggests that this whole situation is legitimately shameful for American democracy. Is it good that our highest court will look more like the people it helps govern? I think that’s fairly self-evident, seeing as we live in a representative democracy.
But, really, it’s plainly ridiculous that Democratic members of Congress are letting out a sigh of relief, as though soon they’ll have finally done their one good deed for the year. Soon they’ll return to their home states to campaign for re-election, touting this like a blue ribbon.
With court appointments seemingly the only major filibuster carveout embraced by the Senate, Congress is utterly incapable of doing anything meaningful except continuing to delegate basically all decisions to the President and an unelected cadre of lawyers. The fact that they’re happy about it makes it even worse.Subscribe to Spectacles