Stephen Breyer and the End of the Apolitical Supreme Court

Ted Kennedy and Joe Biden appear with Stephen Breyer after his nomination to SCOTUS by Bill Clinton. Photo: John Duricka/AP/Shutterstock

Democrats everywhere were undoubtedly pleased to learn that Supreme Court Justice Stephen Breyer has reportedly decided to retire at the end of this term, giving President Biden an opportunity to make good on his campaign promise to appoint a (relatively young) Black woman to the Court. It’s a relief in no small part because Breyer had pretty outspokenly resisted pressure to announce his retirement at the Biden administration’s earliest convenience. And it prevents a repetition of the debacle wherein the revered liberal Justice Ruth Bader Ginsburg opted not to step down when a Democratic president was in office only to pass away just in time for Donald Trump to rush a favorite of ideological conservatives, Amy Coney Barrett, through a Republican-controlled Senate as her replacement.

Breyer’s major excuse for his initial refusal to give Biden a quick Supreme Court opening was that such conduct would contribute to the much-feared (by those in the cult of SCOTUS) “politicization” of the high court. He aired that perspective publicly not long after Biden took office, as CNN’s Joan Biskupic reported:

In an expansive, two-hour lecture at Harvard Law School, Breyer bemoaned the common practice — by journalists, senators and others — of referring to justices by the presidents who appointed them and of describing the nine by their conservative or liberal approach to the law.

“These are more than straws in the wind,” the 82-year-old Breyer said. “They reinforce the thought, likely already present in the reader’s mind, that Supreme Court justices are primarily political officials or ‘junior league’ politicians themselves rather than jurists. The justices tend to believe that differences among judges mostly reflect not politics but jurisprudential differences. That is not what the public thinks.”

Perhaps Breyer changed his mind and bent to partisan pressure from Democrats already freaked out by the theft of a Supreme Court seat by Mitch McConnell, who denied Barack Obama nominee (and now attorney general) Merrick Garland any chance of confirmation in 2016. Or perhaps he wanted to retire all along but paused the process because he really is worried about “politicization” of the Court. Either way, it raises the question of whether Breyer will be the last of a dying breed of Supreme Court justices who think of themselves as above partisan politics.

Certainly a lot has changed in politics and jurisprudence since Breyer was first appointed to the federal bench by Jimmy Carter in 1980. The contemporary practice of vetting judicial nominees for their “philosophies” as well as their qualifications, with the whole exercise closely monitored by the press, barely existed when Breyer came along; the process became much more invasive and exacting alongside the ideological and partisan polarization of the entire political system. Anyone aspiring to the Supreme Court today is thoroughly aware that everything she says or does going back to law school will be part of a record carefully scrutinized by partisans, beginning with the decision to join the conservative Federalist Society or the liberal American Constitution Society, the two major “teams” in legal theory and practice.

That doesn’t mean that savvy and ambitious super-lawyers who know their partisan and ideological leanings are crucial to their advancement won’t deny it all when it serves their purposes. At one of her first public appearances as a justice, Amy Coney Barrett waxed Breyeresque about the terrible misperception of the Supreme Court as a politically influenced institution. Without question, Barrett would have never been nominated to the Court had there been any doubt she would redeem Donald Trump’s many promises to cultural conservatives generally and the anti-abortion movement specifically — nowadays firm and exclusive Republican Party constituencies.

But you cannot really blame Barrett for trying to shore up the ancient image of the Supreme Court as an institution above politics, which is a tangible asset of particular importance precisely when the Court is doing politically controversial things that affect big and solemn issues like reproductive rights. I am sure that Barrett’s piety was especially appreciated by Chief Justice John Roberts, the very political captain of the conservative team that is currently reshaping constitutional law but who famously compared himself in his own confirmation hearings to a baseball umpire impartially calling balls and strike as he saw them.

Perhaps Breyer’s successor, whoever she is, will play the same game to minimize conflict at her confirmation hearings and help maintain the Court’s lofty reputation. But the octogenarian leaving the Court may be the last to half believe it all.

Stephen Breyer and the End of the Apolitical Supreme Court