What Justice Breyer’s retirement could mean for the U.S.

By Sydney Joa, 11th Grade

The United States Supreme Court Justice Stephen Breyer announced his plans of retirement at the end of the court’s current term last week, providing President Joe Biden with a critical opportunity to replace the liberal justice and carry out one of his campaign pledges of nominating, for the first time, a Black woman to the Supreme Court. With the court’s current 6-3 conservative majority and a history of white nominees, there’s no doubt that a Black woman serving on the Supreme Court will rock both legal and political spheres in the following years, and potentially, decades.

At the age of 83, Breyer is the court’s oldest member and one of the three remaining liberal justices. President Bill Clinton appointed Breyer in 1994 and he has since played a vital role in upholding decisions concerning abortion rights and the Affordable Care Act. Nevertheless, liberal activists have pressured him for months to step down while Democrats have control of the White House and the Senate, a circumstance that could be affected after this year’s November midterm elections. They claimed that Justice Ruth Bader Ginsburg should’ve resigned during Barack Obama’s administration because her death at the age of 87–just months before the end of Donald Trump’s presidency–allowed Trump to appoint conservative Amy Coney Barrett as Ginsburg’s replacement. This tipped the Supreme Court even further to the right, thus making Biden’s nominee extremely important for the liberal side.

As American politics becomes more and more divisive and justices depart the bench only through retirement or death, Ingold, Sam, and Rojanasakul of Bloomberg pointed out that the ages of the present Supreme Court justices suggest that this could be the only vacant seat filled for a long time. After Breyer, 73-year-old Clarence Thomas is the next oldest justice, and following him is 71-year-old Samuel Alito. Regardless of Biden potentially winning a second term in 2024, both Thomas and Alito would be replaced by Biden’s successor, provided they both remain around until their 80s (the recent average age when justices depart the courts).

Biden’s Potential Nominees

The names of California Supreme Court Justice Leondra Kruger and federal appellate Judge Kentanji Brown Jackson appear on nearly every list of probable Biden nominees. Though both women are relatively young–45 and 51, respectively–they have extensive judicial experience with both having already clerked for justices (in other words, assisted) on the Supreme Court–something that six of the current court members did after graduating from law school.

Judge Kentanji Brown Jackson

If Jackson is appointed to the Supreme Court, Ian Millhiser of Vox stated that she “will likely be a favorite of criminal justice reformers.” From 2010 to 2014, Jackson was a former public defender who worked as vice-chair of the United States Sentencing Commission. During this time, the commission drastically reduced sentences for several federal drugs and crack cocaine offenders.

Though Jackson has mostly spent her career as a district judge, she also sat on the United States District Court for the District of Columbia, a position that has allowed her to hear a significant number of cases involving executive misuse of power. In American Federation of Government Employees v. Trump (2018), Jackson laid out significant aspects of three executive orders made by former President Trump that tried to restrict the rights of federal workers’ unions to collectively negotiate.

Jackson also served on a panel as an appellate judge that ruled that over Trump’s objections, the House of Representatives investigation into last year’s January 6th attack is allowed access to select White House Records from the Trump administration. The Supreme Court upheld this ruling in January of this year.

Justice Leondra Kruger

Kruger was a distinguished Justice Department lawyer before being appointed to the California Supreme Court and served as the principal deputy solicitor general–a position that constitutes being the federal government’s second-highest Supreme Court advocate.

She also has a reputation for being a moderate. Kruger issued the court’s 4-3 ruling in People v. Buza (2018), opposing a challenge to California’s Proposition 69, which mandated police officers to obtain DNA samples of all of those jailed for a felony crime. Three Republican appointees agreed with her, whilst three Democrats disagreed.

Kruger has explained that her interpretation of the law “reflects the fact that we operate in a system of precedent.” Some say that her willingness to uphold existing legislation could make her a somewhat problematic US Supreme Court nominee, though this may not be seen as much of an issue from Biden’s administration as the court already has a conservative majority. In fact, it’s unlikely that the nominee will be able to modify the law in a way that pleases Democrats as they’re really only able to “play defense on the high court,” as Millhiser stated. “But someone like Kruger might be able to convince her conservative colleagues to embrace caution, and to be more reluctant to toss out longstanding precedents.”

An Outlook of the Situation

Compromises are the only way liberals can hope to win in contentious issues. To build a majority, the three liberals must find a middle ground with at least two conservatives–something that both Justices Breyer and Elena Kagan are fairly good at as they’re willing to give up their liberal views to get a moderate resolution. Instead of nominating another progressive figure, Biden is more likely to choose a figure prepared to collaborate with the rest of the justices to mitigate the court and its conservatism. The more progressive the nominee, the more it will–ironically–make the court conservative; thus, a justice who is more in the middle might maintain the court at a central place.

On another note, even if the 6-3 ideological division remains, Breyer’s successor will change the face of the court (so long as Biden keeps his promise). The Supreme Court will much more accurately resemble the public it serves which further instills institutional legitimacy in this branch. Moreover, having both Black and female representation in such a revered position will motivate future generations of women of color to pursue careers in fields that haven’t always been the most welcoming towards minorities. The nomination of the nation’s first Black woman to the US Supreme Court, with no doubt, promises to be a watershed moment in American history.

References: