Stephen Breyer, an 83-year-old Supreme Court justice who dabbles occasionally in fiction writing, will retire at the end of the Court’s current term. A formal announcement is expected soon; whether it will acknowledge that our collective contributions to the gushing fire hydrant of bullying tweets is directly responsible for this outcome remains to be seen.
The departure of Breyer, one of the Court’s three liberal justices, will not alter the 6-3 conservative supermajority’s stranglehold on federal judicial power. It will not save access to abortion care, or affirmative action, or common-sense environmental regulations, or mid-pandemic public safety responses, or anything else, really, from the dull reasoning of Sam Alito or the overwrought prose of Neil Gorsuch. For as long as the Court remains a nine-member body helmed by fiftysomething Trump nominees who will be keynoting Federalist Society conventions for decades to come, the job of whoever succeeds Breyer will be, at best, treading jurisprudential water as diligently as possible.
But as Democrats cling to the barest of Senate majorities and face a challenging 2022 midterm election landscape, Breyer’s decision to remain on the Court beyond this year would have created a very real possibility that President Joe Biden would be unable to appoint his successor. Senate Minority Leader Mitch McConnell, whose track record for swiping Supreme Court seats is matched only by his inability to coherently defend it, had already hinted that a hypothetical Republican-controlled Senate would not vote on a Biden nominee in 2023 or 2024. Breyer’s announcement of his decision in January, a full nine months before Election Day, should give the White House plenty of time to nominate and confirm a successor—one who can perhaps lend a more robust progressive voice to the Court relative to Breyer’s trademark brand of milquetoast centrism.
On the campaign trail in 2020, Biden promised to appoint the first Black woman justice in Supreme Court history, which is both (1) obviously good and (2) a damning indictment of the institution that it took this long in the first place. Expected to top the shortlist of potential nominees is Ketanji Brown Jackson, a longtime federal judge confirmed last year to a seat on the U.S. Court of Appeals for the D.C. Circuit. Given the Biden administration’s very public efforts to appoint more professionally diverse lawyers to the bench—basically, anyone who wasn’t previously a prosecutor or a big-shot law firm partner—Jackson’s experience as a federal public defender would also seemingly make her an attractive candidate to the White House.
Other potential nominees include Leondra Kruger, a justice on the California Supreme Court; J. Michelle Childs, a federal district court judge in South Carolina whose nomination to the D.C. Circuit is currently pending before the Senate; and Sherrilyn Ifill, a renowned civil rights litigator who recently announced she would step aside after nearly a decade as president of the NAACP Legal Defense and Educational Fund.
The palace intrigue, however, can come another day. For now, let us all take the briefest of moments to celebrate that in the midst of a bottomless supply of awful news emanating from the Supreme Court these days, the one thing that progressives very much needed to happen actually happened. We wish Stephen Breyer the happiest of retirements, when his alarmingly antiquated, deeply wrong views about the nature of his work will no longer pose an existential threat to basic freedoms, civil rights, and perhaps American democracy itself.
Correction: An earlier version of this post stated that Judge Ketanji Brown Jackson was confirmed to her current position “earlier this year.” She was, in fact, confirmed last year, in June 2021.
