Liberals Should Want Breyer to Live Forever

His vision of the Court is more congenial to their realistic hopes than that of the more popular liberal lions

The interior of the Supreme Court: An empty bench.
(Photo by Phil Roeder - Flickr; license CC BY 2.0)

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With the repeated refrain of “Justice Breyer: Please Retire!” coming from everyone from the center-left to the left-left, I think we’re finally coming to the end of the Supreme Court roundelay. At least I hope we are. Because with the Catch-22 that liberals find themselves in now out in plain sight, I can’t see how any more verses we can sing of this particular song.

Breyer has refused to retire because timing his retirement to coincide with a “friendly” presidency and Senate would be politicizing the Court. It would retrospectively taint his legacy, and prospectively taint his replacement’s tenure as partisan. Judges are supposed to apply the law in a dispassionate manner, and therefore should be relatively indifferent to who appoints their replacement. That’s Breyer’s argument.

Progressives, including plenty of centrist liberals, are apoplectic about this because it is very clear that Republicans are not playing by those rules. They blocked Merrick Garland from even receiving a hearing on the grounds that a presidential election was too imminent, then rushed through a nomination of their own mere days before the next election, and now Mitch McConnell has made it clear that he would not confirm a Biden appointment to the Court in 2024, and possibly not in 2023 either. Clearly, Republicans believe that the Court is a vital political matter, and behave accordingly. Not only are Democrats justified in doing the same, they would seem to be morally obligated to do so, if they even partly believe their own professed views.

I’m not going to argue that they shouldn’t. I’m just going to point out that liberals really are trapped in a way that conservatives simply aren’t, and it doesn’t do liberals any favors to pretend that’s not the case.

First of all, and most obviously, if Justice Breyer says he is not going to retire because that would be politicizing the Court, and then he caves to Democratic pressure to retire so a Democrat can replace him, that move will unquestionably be seen as political, by all observers and by Breyer himself most of all. You’re either explicitly asking him to give up his integrity, or explicitly asking him to give up his dream of a Court that is viewed as politically neutral. This would not be the case, by the way, if he’d never made a public issue of the question of retirement; he could have just gone gently into that good night. But the chance for that has passed.

What’s wrong with giving up that dream, though? Well, if Democrats and Republicans understand the constitution so differently that they do not trust the other party’s jurists to interpret the document in a manner they respect, then why do we have a Supreme Court at all? Why shouldn’t we just hash everything out in the political sphere, and let the majority rule? The usual answer is that democracy requires far more than majority rule: It requires respect for the minority, a free press, protections for individual rights, etc. And I agree with all of that—but what does that have to do with the role of the Supreme Court? Those vital democratic goods are, in the final analysis, sustained not by a wise clerisy but by majority support, indeed by an overwhelming consensus, that they are important. If that consensus breaks down, so does democracy, and the Court cannot help then no matter who is on it.

Practically speaking, all the Supreme Court represents is past majorities and their political compromises. And while liberals like to imagine that the Justices are uniquely capable of securing those rights and freedoms that are essential to democracy, the mystique that makes that even plausible is precisely the mystique that Justice Breyer is trying to sustain, and that liberals would have him abandon. It is the illusion of being above politics that allows the Court to argue persuasively that it should be allowed to overrule politics.

If liberals abandoned the dream of a Court above politics, then, they very significantly risk the Court’s legitimacy, which will make it impossible for the Court to be the liberal bulwark that they would like it to be. And that has asymmetric effects on the issues that matter most to liberals. A weaker Court could overturn Roe v. Wade, because that would represent a retreat by the Court from politics, a refusal to overturn laws duly passed by one or another legislature. But a weaker Court could not set new liberal precedents in a like manner.

But it’s actually worse than that.

It’s worse for two reasons. First, why have conservatives been able to get away with politicizing the Court? Part of the answer is that if you actually ask a typical Federalist Society member whether they are politicizing the courts, they will deny it. Rather, they will say, they are applying the constitution, and interpreting it according to rules that are restrained, limited and neutral. Liberals, they will argue, are doing something fundamentally different, reading into the constitution rights that simply are not there and more generally bending the law to suit their own political agendas. So when Republicans play hardball over the courts, they are doing so in order to protect the courts from being politicized—by liberal lawmakers in judicial robes.

I don’t think this is a fair characterization of conservative jurisprudence over the past, say, fifty years by a long shot. In fact, I don’t think it’s even a coherent characterization. Judicial deference—a reluctance to overrule the elected branches—is a coherent stance, and its premier exponent on the current Court is one Justice Stephen Breyer. But for a Court prepared to overrule the legislature, one person’s neutral rule of interpretation is another person’s blatant politicization. I understand the arguments why originalism, textualism and other conservative judicial philosophies constrain the Court from overreach, but in actual practice I would argue that they just provide a particular set of tools for shaping the law, as a cursory look at Bush v. Gore, D.C. v. Heller, Shelby v. Holder, or, for that matter, Bostock v. Clayton readily reveals. And don’t get me started on the Law and Economics movement, which is a massive foreign ideological graft onto the judiciary that steers it in a direction fundamentally contrary to the essence of jurisprudence itself.

But none of that matters. Historically, conservatives saw themselves that way, not merely as more right than liberals, but as the keepers of the flame, as the people who know the right way to do jurisprudence as such. Whether they are self-deluding or mendacious, there’s a real asymmetry there, and I think it has real consequences in terms of intensity for each side, and hence real consequences for how the politics of the Court plays out in electoral terms, with the decisive advantage on the Republican side.

The second reason it’s worse, though, is that the Senate plays an outsized role in judicial appointments, and the Senate as a body is badly skewed toward less-urban states that increasingly skew Republican. This is a relatively new political development, as the Democrats had a 60-seat majority only a dozen years ago—but it is a broad and continuing trend, and one that extends beyond even the bounds of the United States. That skew could still diminish or even reverse at any time, of course, in response to unforeseen political events, but I wouldn’t bet on it happening any time soon merely from reversion to the mean.

The consequence is that Republicans don’t actually need a popular majority to shape the Court. Inasmuch as there is an anti-democratic turn within the Republican Party, then, they have a strong incentive to use the Court to implement that turn. Conveniently, there are new right-wing judicial philosophies on the rise, like “common good constitutionalism,” that are more explicitly unrestrained than the old philosophies that I criticized earlier for not being nearly as restrained as they claimed to be. We’re a long way from those philosophies being dominant—indeed, they may never become so. But one thing that could give them a real boost is if it came to be the consensus view that the courts are inevitably politicized, and that therefore it is appropriate for both sides to simply appoint judges who will rule according to the fundamental values seen as correct by their partisan side.

Those are the stakes that liberals have in the position of the Court, and the reason why I say that they are in a Catch-22. Because of course the liberals are right about Justice Breyer: If he doesn’t retire, and the Republicans take the Senate, then the odds are pretty high that he will be replaced by someone who is significantly more conservative than him. Maybe he’ll be replaced by a Roberts or a Gorsuch, or maybe he’ll be replaced by a Thomas, or even by a Vermeule, but regardless, the more right-wing the Court gets the more reason it has to start exploring what else it might do besides not setting new liberal precedents. But pressuring him into retirement so as to save his seat for a liberal jurist validates the narrative of politicization that fuels the forces that have been remaking the Court, and that will remake it further.

In the end, many liberals like the idea of a powerful and independent judiciary for the same reasons that some libertarians fantasize about the idea of enlightened monarchy: they imagine that, if ideas mattered more than popularity, they would win because they believe they have the best ideas. But in both cases, that’s a fantasy. Ideas are tools, and derive their power from their utility, not their abstract rightness. Whatever happens with Breyer’s seat is at best a holding action for liberals. They can’t win on that front, but only through democracy. Which means their real interest in the Court is for it to be more generally deferential to the political branches—that is to say, precisely the kind of Court that Breyer has long advocated.