The 83-year-old Supreme Court Justice Stephen Breyer must retire.
Right now, the court is broken down 6-3 for conservatives to liberals. Justices Clarence Thomas, Brett Kavanaugh, Amy Coney Barrett, Neil Gorsuch and Samuel Alito are the Court’s conservatives, with Justice John Roberts (moderate), Stephen Breyer (liberal), Elena Kagan (L) and Sonia Sotomayor (L) as the rest.
Technically, party affiliations should not matter. The Supreme Court is supposed to be a nonpartisan party that uses the Constitution to analyze unprecedented legal issues and establish the constitutionality of said issues.
However, there is nothing nonpartisan about the way our Court has been ruling.
Without getting too far into it, the Court is meant to rule on stare decisis, meaning “to stand by things decided.” When an abortion case similar to Roe v. Wade returned to the Court in 2020, the Court struck it down in a 5-4 ruling, with only one conservative judge (Chief Justice John Roberts) ruling based on stare decisis.
But the Court seems to be getting more politicized. With the recent decision to essentially end Roe v. Wade to uphold a Texas abortion law, stare decisis seems to have been thrown out the window.
Because of this, I’ve accepted a politicized Court. But while having a politicized Court (probably) won’t single-handedly destroy our country, the way our government has been handling it will.
Let’s talk about the Senate. When President Barack Obama tried to confirm Judge Merrick Garland as a Supreme Court Justice, the Senate returned the nomination 294 days after originally submitted.
This action set the record for the longest interval from nomination to Senate action for any Supreme Court nominee. The previous record was set in 1916, when the Senate took 125 days to return a nomination suggesting the nomination of Justice Louis Brandeis, the Court’s first Jewish member.
In the Merrick Garland case, the Republican-led Senate claimed that Antonin Scalia died too late and deserved to be replaced by the incoming president, as President Obama was nearing the end of his term. It’s ironic how easily their opinions changed when it came to electing Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg.
Utilizing the filibuster, the nomination committee refused to conduct the hearing until the nomination request expired 293 days after originally submitted.
That move in itself should have been ruled unconstitutional. Abusing the power of the filibuster, which allows the Senate to delay or prevent votes on a specific proposal, the Senate delayed Garland’s chances of being elected.
Moving back to Justice Breyer, it is clear that we cannot trust time. Justice Ginsburg wanted to wait to retire until there was a liberal president, but we are not more powerful than death and there are no true guarantees that we will live another day.
Learning from Justice Ginsburg, we cannot wait to place our eggs in the basket of a liberal president. Should Justice Breyer retire at the end of next term, President Biden would have two years to replace him with another centrist or liberal-leaning judge.
While this wouldn’t balance out the Court’s conservative-dominanted current layout, it would at least guarantee the spot would go to someone of similar views, unlike what happened with Justice Ginsburg.
We cannot afford to take risks at this time. President Biden has promised to nominate an African American woman to the Supreme Court if he receives a nomination, and it is likely going to be Ketanji Brown Jackson. Jackson recently filled Merrick Garland’s seat in the U.S. Court of Appeals for the District of Columbia Circuit, and checks the boxes to make liberals (and some conservatives) happy with the nomination.
The dream of having a nonpartisan Court has been dead since its formation. If Justice Breyer truly wants to do what is best for the Court and America, he will retire with enough time for Biden to nominate and confirm a new, and hopefully more diverse, Supreme Court Justice.