On Wednesday, Joe Biden’s presidency got a bit of a lifeline with the news that Supreme Court Justice Stephen Breyer is retiring at the end of this term in October.
Few things motivate a political base more than a Supreme Court battle, so a nomination fight in the fall will likely change the dynamic of the 2022 midterm elections. But Biden getting to pick a replacement won’t change the ideological balance of the court, so the confirmation battle won’t have the same impact as the confirmation of Amy Coney Barrett, who replaced radical left-wing Justice Ruth Bader Ginsburg.
But the real question right now is: what finally got Breyer to retire?
With the U.S. Senate likely to be under GOP control after the 2022 midterms, Democrats haven’t been subtle about their desire for Breyer to call it quits while they still control the upper chamber. Nominated by Bill Clinton in 1994, Breyer is the oldest justice on the Supreme Court and was seen as the most likely candidate for retirement. Democrats and left-wing activists have been aggressively pressuring him for many months, especially after Ruth Bader Ginsburg decided to stay on the court despite her poor health (rather than retire while Obama was president), leaving Trump to fill the vacancy after she died of cancer in 2020. Liberal groups even launched billboard campaigns pressuring the now 83-year-old justice to call it quits, suggesting his “legacy” was at risk.
It was widely expected that at least one vacancy would occur under Biden, and the pressure campaign on Breyer got even louder after Senate Minority Leader Mitch McConnell said that if he becomes majority leader again in 2022, he would likely block Joe Biden from filling a Supreme Court vacancy if one occurs in 2024. In other words, Breyer was Biden’s best opportunity to get a pick confirmed.
But, last summer, Breyer crushed liberals’ dreams by dismissing the idea that he had any plans to retire soon because he was happy in his new role as the senior liberal on the bench. However, a month later, he told the New York Times that he was struggling with the decision of retirement. He spoke 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.”
In all likelihood, Breyer was reading the tea leaves, and they told him that Democrats are on the verge of losing the Senate. A Republican majority would never confirm a polarizing left-wing nominee. So getting out now was likely a more attractive option than waiting until 2024, when a Republican might win the presidency (which currently seems likely), thus forcing Breyer’s hand.
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Carrie Severino, the president of the Judicial Network, thinks Democrats bullying Breyer is what ultimately prompted his decision. “The Left bullied Justice Breyer into retirement and now it will demand a justice who rubber stamps its liberal political agenda,” she tweeted. “And that’s what the Democrats will give them, because they’re beholden to the dark money supporters who helped elect them.”
