The Volokh Conspiracy

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Four New Justices in Six Years

We haven't seen this much rapid turnover in five decades.

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According to reports, Justice Breyer will step down at the end of this term, or when his successor is confirmed. In all likelihood, the Supreme Court will have added four new members in the span of six years. Justice Gorsuch was confirmed in April 2017, Kavanaugh in October 2018, Barrett in October 2020, and now Breyer's replacement in 2022.

The last time the Supreme Court saw such a rapid turnover was during President Nixon's tenure. Chief Justice Burger was confirmed in 1969, Justice Blackmun in 1970, and Powell/Rehnquist were confirmed in 1971.

Still, FDR set the modern-day record. Between 1937 and 1943, Roosevelt made nine appointments: Black, Reed, Frankfurter, Douglas, Murphy, Stone, Byrnes, Jackson, and Rutledge. The ultimate record, however, belongs to the OG GW. President Washington appointed five Justices in 1789, and six more during the rest of his tenure.

Let us not forget that Justice Breyer was the junior justice between July 1994 and January 2006. We may never again see a court with so much stability. Meanwhile, Justice Barrett was the junior justice for about two terms. Soon, someone else will have to answer the door.

NEXT: Breaking: NBC News Reports Justice Breyer Will Retire

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  1. It's going to be so satisfying when Manchin blocks any appointment. But that's what Biden gets for sending Harris to attack Manchin *in WV* at the beginning of his presidency.

    The argument won't be too hard to make: with a 50/50 senate and terrible approval numbers and it being a midterm election, let the American people vote to see if they want Biden to nominate a SCOTUS justice.

    All of the left's rhetoric has shown Manchin he has no future in the Democratic party, so no real reason to be intimidated by them. Plus, running as a Republican will give him a lock on his senate seat as long as he wants it. In other words, there's no downside for Manchin.

    I hope he slips that final dagger right between the ribs. If any administration deserved it, it's the Harris-Biden administration.

    1. Right. The only legitimate government is that by Republicans. 81 million votes for Trump confirm it.

      1. That is not even slightly what Angus said. Reasoned disagreement is healthy and can be educational. Strawmen and irrelevancies aren't even entertaining.

        1. Angus is either a troll or — no, he's a troll. The "Harris-Biden administration."

          1. His self control not to say Democrat Party is impressive.

    2. We'll see who the nominee is.

      An open nomination will fire up the Democrat base. Republicans have an incentive to get the nomination over before the election.

      Will Democrats nominate a red herring who can't get Manchin & Sinema on board? Or will they try to get a Republican vote?

      1. No matter who the nominee is, they will probably get a few republican votes. It's not like letting Biden replace Breyer with whomever he wants will shift the balance of the court.

        As you say, it's not in the Republicans interests to be obstructionist about it right now.

        1. Depends who they nominate

      2. they will nominate someone they can use to attack any one opposed as a bigot, racist, homophobe, or just a meanie.

    3. Wouldn't it be fun if Manchin actually decides to flip to the dark side?

      1. That would be a way to, you know, FJB.

        Or, if you prefer, Lets go Brandon!

      2. Manchin has voted for every Biden judicial nomination that reached the Senate floor. Sinema, too. Not likely that either jumps ship.

    4. Your fan fiction is spiteful and crappy.

      1. I'm not the one who sent my VP to embarrass a senator in his home state with a 50/50 senate.

        You should turn your anger towards Biden, not me.

        1. I'm not angry at you or Biden, just noting how you spun a whole tale out of spite and blame on behalf of someone you don't really know.

          Speculation is tricky, but it does tell one a lot about the speculator.

          1. I didn't spin a whole tale out of spite and blame. I spun it out of the Dems' gross missteps over the past two years.

            The *really* good news about this retirement is that it means the Dems are almost certain they won't hold the senate past the midterms and they probably showed their internal polling to Breyer to convince him to step down now.

            Win-win as far as I'm concerned.

            1. Ha ha he criticizes you for rank speculation, and you answer with more rank speculation. At least you are consistent.

    5. Angus, in what part of the constitution do you get the idea that the American people get to vote to see if they want Biden to nominate a justice? I love how conservatives are so willing to bend the constitution into unrecognizable shapes when it suits their needs, yet they sing such paeans to constitutional fidelity other times.

  2. Jimmy Carter is the only President to serve a full four-year term and appoint no justices to the Supreme Court. William Howard Taft, on the other hand, served only one four-year term as President, yet appointed six justices to the Supreme Court. His six picks rank third behind Washington (11) and FDR (9). Taft himself, of course, would later be appointed to the Supreme Court by President Harding, where he would serve alongside two of the justices he himself had appointed.

  3. And Biden will pick a black female. Because his last gift of a nomination of a black female has worked well thus far.

    1. Who knows, Harris might bet he nominee. Then her replacement would be the next president a year from now.

      What would be fun is if Biden **didn't** nominate a black woman. The reaction among Democrat voters would be interesting to watch. I need to see if I can find any popcorn on my empty grocery store shelves.

      1. If he wants to pick a black female, Biden will have a very deep bench (so to speak) to choose from. Republicans remain a virtually all white and all male party, the few blacks and females obtaining unwarranted prominence because of their novelty.

        1. He could skip the black part if he nominated Victoria Kolakowski, I bet.

          1. Nope. He pledged to nominate a black woman. There is no upside to him lying about this. As has already been noted by others in this thread; there are plenty of fully-qualified black women he can choose from (I'd put my money on Judge Brown Jackson). Nominating VP Harris is firmly in the 'fan fiction' camp . . . but, hell, if it makes people happy to wildly speculate; it really doesn't hurt anyone, right? 🙂

            1. Yeah, I saw that announcement from the White House that they absolutely were nominating a black woman, after I made that (half joking) comment.

              Again, race and gender are the most important qualifications, with competence a distant 3rd place.

              1. The Washington Post
                By Lou Cannon October 15, 1980

                Ronald Reagan, striving to refute charges that he is insensitive to women's rights, said today he would name a woman to "one of the first Supreme Court vacancies in my administration."

                "It is time for a woman to sit among our highest jurists," Reagan said in a prepared statement to a news conference here. "I will also seek out women to appoint to other federal courts in an effort to bring about a better balance on the federal bench."

                1. Yeah, that wasn't good, either.

        2. I mean I remember when Democrats blocked a USSC nominee under Bush because they wanted to elect the first hispanic to the court. Good times.

          It's funny that the democrats keep this narrative alive despite them technically having more minorities run in 2016 than the DNC (namely hispanics) and given the attacks against gop races like Larry Elder, Winsome Sears, Thomas, etc etc.

          1. Democrats blocked a USSC nominee under Bush because they wanted to elect the first hispanic to the court.

            Um. you wanna try that again?

            1. I suspect he was talking about Miguel Estrada being blocked from a CCA appointment, because the Dems knew he would be on the veery short list for the next SCT opening.

              Brown Jackson is an exact parallel, except she got confirmed.

              She will likely be on the SCT by July 4.

        3. The fact you believe that says a lot more about your ignorance and bigotry than it does about the Republican party.

      2. Harris isn't going to be the nominee, they need her to break ties, and even a lot of Democrats admit she's unqualified for basically anything.

        1. "Harris isn't going to be the nominee, they need her to break ties, and even a lot of Democrats admit she's unqualified for basically everything."

          FIFY

        2. That's one reason why the Dems might nominate her. It'd get her out of the way. It'd also give Dems a way out of having Biden as president without losing face. I wouldn't be money on it. I also wouldn't bet against it.

          1. They're not going to nominate her because she can't cast a tie breaking vote for her own confirmation to the Supreme court, and can't cast a tie breaking vote at all if there isn't a tie, and too many Democrats wouldn't want a ditz like her on the Court. Then how do they confirm a replacement VP without her vote?

            Though I bet Pelosi would love to see the VP office vacant; If Biden croaked, she'd be President.

            1. They're not going to nominate her because she can't cast a tie breaking vote for her own confirmation to the Supreme court

              Why not?

              1. Apparently I'm wrong about that. The real obstacle is replacing her, since a new VP can't be confirmed until the position is vacant, making it impossible for the VP to vote on the confirmation of their successor.

                1. Not that any of this is going to happen, but of course she could simply resign the vice-presidency if that were an issue.

                  1. If she did that, who would you foresee breaking the tie in her absence?

      3. Who knows, Harris might bet he nominee.

        Correct me if I'm wrong, but if Harris were appointed, then wouldn't the Democrats need at least one Republican vote in the senate in order to confirm the replacement VP, since by definition she'd no longer be able to break a tie?

        1. I don't know why she couldn't vote on her own nomination. It's been done before, with Senators voting for themselves.

          1. I'm not talking about her nomination to the Supreme Court (I agree with you there, unless there's something I'm missing). I'm talking about the confirmation of whoever Biden appoints to replace her as VP.

      4. A lot will depend on who he picks. Are there any Native American or Pacific Islander women on the federal bench?

        1. If he choose any, he'd be breaking his campaign promise.

  4. They must not be very confident about the midterms.

    1. "They must not be very confident about the midterms."

      The important point is confidence concerning the medium- to long-term trajectory of American improvement.

      Clingers hardest hit.

      That's why conservatives have become so disaffected and desperate.

    2. Selecting a good nominee then having the Republicans attack them could be seen as a positive move to rev up their base and look reasonable to a lot of people.

      1. rsteinmetz : "Selecting a good nominee then having the Republicans attack them could be seen as a positive move to rev up their base and look reasonable to a lot of people"

        Biden doesn't need a nominee to rev-up the base & independents, or look reasonable in contrast to Republicans. The abortion decision will easily accomplish that all by itself.

    3. I'm pretty sure Breyer made it pretty clear he wasn't listening to the DNC, so this doesn't say much.

      But yeah, no one on the Democratic side is very confident about the midterms.

  5. I think Biden would nominate the same person this year as he would have next year, even if the Republicans take the Senate.

    What changes this year is the opportunity for Biden and the Democrats to motivate the base some after a year of unmitigated disaster. The "Biden nominates first black woman to Supreme Court" is unquestionably powerful and will likely get a few dispirited Democrats to the polls who may have stayed home otherwise. I suspect the Democrats will time the hearings and vote to run right up against the election.

    1. If they nominate someone far left, they can also campaign on Republicans being racist misogynists too. We'll have to see what they plan based on who they choose. Then again, they have to get Manchin & Sinema to vote yes.

  6. What about forty judges in forty nights?

    Perhaps NSFW.

    https://www.youtube.com/watch?v=xyhzBEOIuKA

  7. Explain to me why all the reporting is "according to sources familiar with his thinking" and there is no Supreme Court press release?

    1. Interesting question. You're right, and Biden denies having heard anything from Breyer about it, while Breyer has yet to confirm it.

      I suppose it could be a coordinated move to pressure him, but that seems awfully risky if it backfired.

      At first I thought it might be some procedural thing, but, no, Justices do announce well in advance of the effective date.

      1. The WSJ says "The Supreme Court spokeswoman had no comment. A formal announcement of Justice Breyer’s plans was expected by Thursday."

        Supposedly, the tradition is that the justice notifies the President in writing of his/her retirement.

        1. Yes, but they asked Biden, and he denied knowing anything about it: “Every justice has the right to decide what he or she is going to do and announce it on their own... There has been no announcement from Justice Breyer. Let him make whatever statement he’s going to make and I’ll be happy to talk about later.”

            1. Are you guys not familiar with press relations 101?

              1. They worship a guy who fired people via tweets. They don't really understand how professionals operate.

          1. "Yes, but they asked Biden, and he denied knowing anything about it"

            So, where exactly in your Biden quote do you detect such a denial as you say he is making? Go ahead, I'll wait......

            Will just note Biden said exactly what any normal President would say when a Justice has informed the President of plans to resign, but has not yet made that known publicly.

            1. The normal course of events is that the Justice publicly announces, and THEN the White house starts talking about it.

              1. Which proves nothing.

  8. I just read about her relationship to Paul Ryan and my brain hurts.

  9. I find myself wondering if a couple of Senators on the Democratic party’s center-white will reject Biden’s first nominee and force him to appoint a more center-right Justice.

    And at this point it might be in the Democrats’ interests. A Justice who can engage and occassionally persuade those to the right might do more for the left in practice than one who constantly writes stirring dissents.

    1. Sorry, center right.

      1. An understandable slip at this White, male blog.

      2. Ah no. Implicit Association Training from the cradle. A fine meme; “Center White” in the Dimocratic Party.

    2. But given the people involved it’ll probably be the case.

  10. It does seem likely that well will see another long stretch without a change after Justice Breyer. Justice Thomas will be the old man on the court at only 74. I suspect he could wait out till 2028 for retirement. After than we could be looking at ten years for a new Justice.

    I still like to see an 18-term limit so we see a little more turnover.

    1. Justice Thomas will be the old man on the court at only 74. I suspect he could wait out till 2028 for retirement.

      You're forgetting about Hillary smothering him in his sleep with a MyPillow.

  11. I have noticed a lot of chatter about Hillary now identifying as black - - - - - - - -

    1. Maybe, but Hillary would have to be female also.

  12. Fox: Breyer upset with leak. Did not want to announce it. Upset with the way this has been handled. No formal statement from the Supreme Court.

  13. Let's entertain some other options.

    1. The justice that Biden should choose: Sri Srinivasan. An accomplished jurist, excellent legal scholar with bipartisan support. Sri would pass with flying colors, no matter his race or gender. (But for those who care, he'd be the first Asian Hindu on the court).

    2. The 13-Dimensional Chess appointment: Mitch McConnell.

    Why nominate Mitch, of all people? Well, the biggest reason is that there's currently a Democratic Governor in Kentucky. Getting rid of Mitch on the Senate would give the Democrats a 51-49 edge in the Senate, with better odds of forcing their "Change/Federalize the voting laws to get more Democrats elected" plan through. In addition, Mitch is 79....he wouldn't be on the SCOTUS for long. Plus, you look all bipartisan and stuff...even it Mitch turned down the gig.

    1. Ugh. Please, no. He'd be a TERRIBLE Justice.

        1. McConnell. He'd be totally outcome driven, with scarcely even a pretense of legal reasoning.

          And I'd likely hate the outcomes, because he wouldn't have to worry ever again about what Republican voters thought.

    2. Setting aside everything else wrong with this fanfic, you don't know Kentucky law. It requires that the governor replace a departed senator with one from the same party. Beshear would have to appoint a GOP senator to replace McConnell.

  14. I think this seat stays open for 2.5 years

  15. I love all the silliness above. Biden is going to nominate Ketanji Brown Jackson. The right wing media will pull out the standard script of extremism-socialist-etc. But because she'll be replacing Breyer and thus not changing the balance on the court, the GOP will go through the motions but their heart won't be in it. And KBJ is extremely well qualified by conventional standards — Harvard/Harvard Law, private practice, a federal judge, and the DC Circuit Court of Appeals (though only a short time there) — so barring an October Surprise in which some woman claims KBJ tried to molest her in high school decades ago, she'll pass with only perfunctory opposition.

    Because we live in a hyperpartisan era, she'll only get a handful of GOP votes — Murkowski, Collins, one or two others (Graham also supported her in her nomination to the DC Cir.) — but that will be more than sufficient. She'll get all 50 Dems just like last time.

    And the last five years showed that there is no price to pay for party-line confirmations. (People predicted Susan Collins would be harmed by her support for Kavanaugh, but it didn't happen.) No biggie.

    1. So boring though!

      Much better to weave endless tales of how Biden is going to nominate Karl Marx, reveal he was a necromancer all along, but then mix up Marx with Scalia, who makes Trump superPresident for eternal unlife.

      1. We can't afford a far-left liberal like Scalia on the Trump Court unfortunately.

    2. Agree.

      The fact that she was just confirmed to the DC CCA means that the Rs won't really try to block her. If they really feared her, they would have tried hard to block her CCA appointment. That is what the Ds did with Miguel Estrada, because they know that confirming him to the CCA would pretty much guarantee him a SCT seat if one became available.

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