Supreme Court

What Difference Would a Justice Breyer Retirement Make?

Replacing the Court's most pro-government justice with a young progressive might make a bigger difference than expected.


The Supreme Court's October 2020 term is in the books, and there is no word on whether Justice Stephen Breyer will retire in order to ensure that President Biden names his replacement. Justice Breyer has hired the full complement of clerks for the coming term, and it appears he wants to have one more year as the senior-most liberal on the Court. If the Court is going to be split 6-3, Breyer may be thinking, he might as well be the voice of the three.

Most of those urging Justice Breyer to retired focus on the long term balance of the Court. Breyer should retire now, they argue, so as to ensure that his seat is filled by a Democratic president with a Democratic Senate. This would keep a liberal seat in liberal hands well into the future by replacing a justice in his 80s with one in her 40s or 50s. Those trying to pressure Breyer to retire also worry about what would happen were the Senate to fall back into Republican hands.

Replacing Justice Breyer with a Democratic appointee would maintain the Court's current balance on many high-profile issues, such as race, abortion, religion and even property rights. But I think it is a mistake to assume that a younger, liberal justice would replicate Justice Breyer's jurisprudence and voting pattern across the board. In at least one area—criminal justice—I suspect that a new liberal justice would differ significantly from Justice Breyer.

Throughout his time on the Court, Justice Breyer has been a notably pro-government justice. This has meant support for government regulation, but it has also meant more sympathy for police officers and prosecutors than the typical liberal justice. While Justice Breyer has turned against the death penalty, his pragmatism has also made him more open to government arguments that the rights of suspects and defendants need to be balanced against practical considerations. When the Court splits along formalist-pragmatist lines over criminal procedure, Breyer usually sides with the pragmatists.

A younger liberal justice would likely be more skeptical of government, and law enforcement in particular, than Justice Breyer has been. In a sense, you could say a Breyer replacement would likely be a bit more libertarian. Some of the difference would likely be due to a greater sensitivity to the racial implications of deferring to government power, but some of it would also be generational. As I've noted before, we are already seeing hints of a generational split on criminal justice among the conservative justices, as in Van Buren, and I suspect we will see a similar divergence between Justice Breyer and a younger liberal replacement, if and when he eventually leaves the Court.

NEXT: New Op-Ed: Conservative Justices Warn Kavanaugh and Barrett Lack 'Fortitude'

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  1. You assume it’ll be easy to find 50 votes to confirm a liberal justice.

    Feels more likely they’ll need someone moderate to ensure Manchin, etc. are on board.

    1. With more Republican seats in play to be flipped, it may get easier after next November.

        1. Fox News is reporting that Hershel Walker might run for the Senate.

          So you guys have that going for you.

          Trump even says Walker should run!

      1. The top three flippable Senate seats are currently occupied by Republicans. Seven of the ten most flippable seats are currently occupied by Republicans.

        Overcoming Sens. Manchin and Sistema — and the Republicans — seems achievable as the American electorate continue to improve (more diverse, less rural, less religious, less backward, less bigoted) each year, even in some of our less advanced states.

        1. Sinema.

          1. One thing I think the activists in the Democratic Party don’t understand is that Manchin and Sinema are taking the public heat, but there actually a number of Democratic Senators in the background who like filibusters because they reduce the number of tough votes they have to take, or just because they are moderates and don’t want the left to get everything.

            If the Dems won, say, a 53-47 majority in the Senate they might still not be able to get rid of the filibuster because some of those folks would come forward. (On the other hand, if the Dems won 57-43, I suspect the filibuster would be gone or sharply curtailed.)

            1. It’s my expectation that, if the Democrats won a 53-47 majority in the Senate, AND the Democratic leadership really wanted rid of the filibuster enough to crack heads and make enemies, the filibuster would be gone.

              The Democratic party has occasionally pulled off victories in cases where voting for the law in question was outright political suicide for the members who were compelled to do it. And they knew it would be. The ’94 AWB, for instance. A number of the Democrats who voted for that knew they were pretty much guaranteed to lose their next election, but they did it anyway. The ACA is another example.

              They don’t do that lightly, but they do seem to have the capacity to do it when they really care to.

              The catch is that, to pull it off they might have to do some things that would seriously piss off a few Senators who WOULD still be around to remember, and hold a grudge. So they’d only do it if they had enough seats they could lose a couple votes on important matters and still win.

              1. I agree with the carrot-and-stick approach.

                I hope West Virginia (coal, rural benefits, etc.) pays a severe price for Sen. Manchin’s conduct, imposed by Democrats.

                1. Manchin is a legacy of West Virginia having once been a slave state.

                  The economic realities of 2021 have become more important than the memories of 1861, notwithstanding how badly the Dems have screwed rural states…

                  1. How have the Democrats screwed rural whites?

                    1. Democrats have not done so. Yet.

                      Who knew rural electrification would turn out to be such a bad idea?

                2. Rev:

                  That’s terrible and sociopathic.

                  We are all in this together. There is no “screw those guys, they didn’t vote for us anyway”. We are one country, and nobody should be punishing West Virginia for the sin of having different political beliefs from the states on the coasts.

                  1. No free swings, Mr. Esper.

                    Most federal investment in West Virginia has been a spectacular failure. Support for coal these days is silly.

                    Enabling voter suppression, bigotry, belligerent ignorance, and backwardness should have consequences, in my judgment. I respect your apparent objection.

                    1. Federal investment a failure? You mean the project that was the life’s work of the former exalted cyclops/senior senator from the great state of West Virginia? Maybe he really didn’t renounce is membership. Was there voter suppression when those coal mining bigots kept returning him to the Senate, or did they only become ignorant and backwards after his death?

                    2. Yes, a failure.

                      Drive through West Virginia sometime. It’s like visiting the 1970s (had every good school in America been closed since the ’30s.)

        2. “The top three flippable Senate seats”

          As judged by the same people who told us last year about all those “Leans Dem” House races?

          IIRC, every single “toss up” went to the GOP, and a majority of the “leans Dem” as well.

          You chumps are going to get hammered so hard in 2022 that all the vote fraud in the world won’t get you out of it

          1. If you can get to the page

            But grab any 2020 House “predictions”, then compare them to the reality:
            Dems: 3 pickups (2 in NC where a court gerrymandered them for teh Dems for that election)
            GOP: 15 pickups

            Not one Republican incumbent lost.

            So, you can wank about the 2022 “predictions” from the same people who f’ed up in 2020 all you want. Have fun

          2. Unless you have perfected a machine that mass-produces poorly educated, roundly bigoted, easily frightened, selfish, southern, rural, elderly, superstitious White males — and Prof. Volokh and his Federalist Society friends divert enough attention from their Facebook-Twitter vendetta to figure a way to register the newly minted clingers to vote — your predictions of a red wave are just a fever dream.

          3. Neither you nor I know how 2022 is going to come out.

            I would recommend not counting your chickens.

            1. I know the 2022 electorate will be less White, less bigoted, less backward, less rural, and less religious than the electorates of 2020, 2018, 2016, 2014, 2012, 2010 . . .

            2. The “Biden Administration” has spent their first six months fucking up.

              There is no indication that they’re going to get any more competent in the next 16 months.

              Yes, the MSM and Tech Lords are doing everything in their power to prop the Dems up. But all those soccer moms are paying 40% more for gas to drive their kids around. How much is it going to go up in the next 16 months?

              The Left is insane, and the kooks are out in full display, be it defending men showing their dicks in “women’s spas”, the C RT nuts, or the public school teachers who refuse to teach.

              The only reason Dems won’t get hammered as hard in 2022 as they did in 2010 is that they have so much less to get hammered on

        3. “The top three flippable Senate seats are currently occupied by Republicans.”

          That changes if Governor Sununu runs in New Hampshire. He’s easily the most popular politician in the state, and would be favored if he runs against Maggie Hassan.

    2. Has Senator Manchin opposed any court nominees since the Democrats took control of the Senate? I suspect he will defer to the President’s choice.

      1. Sen. Manchin has opposed Biden nominees to administration positions (maybe even a Cabinet position or two), but I am not sure enough Biden judicial nominees have made it to a final vote to provide much illumination on that point.

        1. Seven Biden nominees have been confirmed, each with more than 50 votes. I don’t think Manchin has opposed any of these. Remember than any Biden nominee will labeled far left with out regard to reality. You see people calling Merck Garland radical and he is about as middle of the road as you can get.

  2. I would actually assume that any replacement for Breyer would be radically more hostile to freedom of speech, religion, and association, than Breyer is. Because that’s where all the energy is in the Democratic party today.

    Sure, they’d make a show of selecting a ‘moderate’, but remember: We were told that Garland was a moderate. Now look at his behavior as AG.

    The left does not lack for stealth nominees who’d be 110% on board with their agenda, in a way no jurist of Breyer’s generation would be.

    1. Not sure you are not just repeating Adler’s comments. He noted that there are many factors involved in any justices philosophy to the law and Constitution. It is interesting that he noted fault lines along the generational divide. So it not just conservative vs liberal, but today’s conservative/liberal vs yesterday’s conservative/liberal.

      As for freedom of speech, my generation may well have been the most accepting of free speech. I believe it was tighter in my parents generation and I see it closing in again.

    2. “I would actually assume that any replacement for Breyer would be radically more hostile to freedom of speech, religion, and association, than Breyer is. ”

      I would think so, Breyer is a pretty moderate, DLC liberal justice.

      1. That’s part of my point. Breyer is a hang-over liberal, from a generation where they still made a show of caring about those things, and sometimes it wasn’t a show.

        There’s not a chance in hell Breyer’s replacement at the hands of this administration would be remotely so liberal in a non-Orwellian sense.

        Indeed, that might play a role in why he isn’t resigning!

    3. What behavior as AG?

      You mean he’s not Barr?

      1. I agree. What has Merck Garland done that would make anyone think he is not mainstream? It is easy to throw out suggestion, harder to back them up.

  3. This is a really pathetic article

    You’ve got a full term of SC cases with the current Court. Which cases would have had different outcomes if there’d been a complete “Progressive” nut on the Court instead of Breyer?

    None of them? Some?

    Did you not do even 5 minutes of research before writing this

    1. At present? The cases wouldn’t have come out different. The Overton window would shift substantially, though, if the Court had a modern left-winger on it, instead of the older generation of left-wingers who were used to making noises about civil liberties, and even meant them to some extent.

      1. Not until they get two more seats on the Court

  4. Even a younger CONSERVATIVE Justice would likely be more skeptical of law enforcement.

    I believe there was a post here in the last several weeks highlighting the “generation gap” on the Right when it comes to law enforcement in recent decisions.

  5. “if and when he eventually leaves the Court”

    If? Does he have some secret plan for immortality?

    1. Theoretically, the Court could be abolished out from under him before he dies. I wouldn’t rate the odds of that as high, but it’s not absolutely guaranteed he’ll leave the Court, rather than the other way around.

  6. Supreme Court jurisprudence is so results-oriented and instrumentalist that I doubt even the appointment of several younger justices would make too much difference. Although both the younger conservatives and the younger liberals might be more hostile to freedom of expression, the conservatives would never support any particular suppression of speech by the left, or the liberals any suppression by the right. Similarly, the conservatives will hesitate to (say) punish a police officer who shoots a black man, and the liberals to punish an officer who shoots a white man. I guess one could imagine a principled libertarian justice, but principled libertarians tend to do things like writing articles endorsing baby-selling which end up disqualifying them.

  7. The most interesting Breyer retirement scenario is probably among the least likely. Suppose those orchestrated White House leaks to Politico & other publications quite critical of Vice President Harris & her Chief of Staff (unusual at any time, more so this early) indicate that the Biden camp thinks she’ll be a drag on the ticket in 2024, or lead the Party to defeat herself if Biden doesn’t run. It would certainly be politically difficult to dump the first black & female VP, but if Biden were so inclined, he might be able to make it almost look like a promotion, or at least a lateral move, if he nominated Kamala Harris to the Supreme Court. Harris might not do that well in the confirmation process, and it would look bad if she had to cast a tie-breaking vote for herself, but it’d be good political theatre, even if the odds of it happening are slim. Let’s see what happens in the next year or two.

  8. Doing some simple math tells us at least one of the ‘liberal’ justices has been opposed to even limiting QI; I’ve long suspected that to be Breyer.

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