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The SCOTUS Decision on Texas Abortion Law Puts Pressure On Breyer to Retire

Erin Schaff/The New York Times via AP, Pool

As my PJMedia colleague Lincoln Brown noted earlier, the Supreme Court’s refusal to take up the new Texas abortion law has radical leftists fuming… at Ruth Bader Ginsburg.

Ruth Bader Ginsburg, you see, had been in declining health for many years before passing away in September 2020—during Donald Trump’s presidency. To the radical left, RBG betrayed the left for refusing to step down when Obama was president despite her advanced age and declining health. In fact, according to the New York Times, Barack Obama even tried to convince her during a secret lunch in July 2013—to no avail. Had he managed to convince her, it’s conceivable that things would have played out very differently.

But the radical left’s rush to “cancel” RBG for not retiring at a politically convenient time spells trouble for Justice Stephen Breyer. Democrats desperately hope that Breyer will retire while they still have the majority in the Senate, and the now 83-year-old justice has already been the target of a public pressure campaign. The pressure is only going to higher now. Few things motivate the left more than abortion.

Earlier this summer, Breyer seemed to throw cold water on the idea that he would retire any time soon, suggesting that he was happy in his new role as the senior liberal on the bench. But, last week, Breyer gave Democrats a glimmer of hope, telling the New York Times that he’s struggling with the decision of retirement. He told of a conversation he had with the late Justice Antonin Scalia years ago.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Breyer recalled. “That will inevitably be in the psychology” of his retirement decision, he said. “I don’t think I’m going to stay there till I die — hope not.”

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Joe Biden has been under significant pressure to pack the court—adding seats to fill them with left-wing justices who can preserve the Democrats’ radical agenda. However, moderate and red-state Democrats have made such a move impossible. The importance of Breyer’s retirement plans is complicated. Should he retire now and Biden nominates his replacement, it would not change the court’s ideological balance. However, if Breyer remains on the court passed 2024, and a Republican (Donald Trump?) wins the presidential election, Breyer’s advanced age becomes just as problematic as Ginsburg’s was for so long. Breyer could, in theory, retire in 2024. Still, if Republicans win the majority in the Senate in 2022 (and that looks increasingly likely given Biden’s political problems), McConnell has already promised to block Biden from filling the vacancy.

“Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president, you have to go back to the 1880s to find the last time a vacancy was filled. So I think it’s highly unlikely,” McConnell said in June. Perhaps it was a mistake for McConnell to say so, as this promise will certainly be factored into Breyer’s decision-making process.

Public pressure on Breyer to retire now will inevitably increase. Liberals had hoped he’d announce his retirement at the end of the 2020-2021 term, but he did not, which suggests he plans to stay at least until the end of the 2021-2022 term, which ends next summer—putting a vacancy battle in the peak of midterm election season.

So, mark my words, it’s about to get ugly for Justice Breyer.