There is a part of me that is reticent to write this. No doubt some will see my writing this article as an act of arrogance, but it is no less pertinent or necessary to the public good to say this. For all the long-term good he has done in serving the American people, Justice Breyer must resign from the Supreme Court. Suppose there is to be any credibility left in this mighty institution of American jurisprudence. In that case, a long-term buffer must remain on the bench to prevent the continued degradation of our political institutions.
From the beginning of this Court’s conception, the appointments and approach to rulings have been nothing short of political. Despite Obama being the duly elected President of the United States, then-Majority leader Mitch McConnell blocked Judge Merrick Garland from a vote in the Senate, effectively meaning that the President would not affect the composition of the Court’s composition. Instead, McConnell elected to give that power to Donald Trump, a president who enjoyed none of the popular mandate that his predecessor possessed.
This move further irritated the tensions between the American people, who voted for Obama and his platform, and the administration that actively altered the face of the Court by appointing Neil Gorsuch.
What followed was two judges with controversies all on their own. Then-Judge Kavanaugh was accused of sexual assault, and Republicans almost immediately pushed the accusation aside with calculated precision. The consequences were immense for Dr. Ford, the main accuser, as she was subjected to death threats after Kavanaugh’s testimony. Republicans appointed him anyway. Then came Judge Amy Coney Barret, who was controversial for various reasons. Namely, her opposition to Roe V. Wade (1973). But more than that, Barret revealed a fundamental ignorance of the laws she was supposed to uphold. During her hearing, Barret was asked by Senator Ben Sasse (R-Nebraska) about the five rights protected under the 1st Amendment. Barrett seemingly forgot that the right to protest, also known as the right to have a redress of grievances, is a protected right.
This embarrassing display is not the only basis for concern, though significant. One would expect a lifetime appointee to the Court would know about one of the most important rights a democracy can have: the right to dissent. However, it is unsurprising that such a slip didn’t hurt her appointment chances. All the GOP is after is another conservative justice.
Barrett, Gorsuch, and Kavanaugh represent an unmitigated control level over the country’s highest court. During his time on the Court, former Justice William J. Brennan Jr. liked to remind his colleagues that a person could do anything with five votes. While hyperbolic, it speaks volumes about a single appointee’s power, much less three. With a five-to-four majority, some moderation is possible and even required to get a ruling. But with a six-to-three majority, that moderation is unnecessary so long as those three additional justices are on the same page.
And that is where Justice Breyer comes in.
Under normal circumstances, Justice Breyer would be under no pressure to resign, as Justices usually serve for life. But with the current state of the Court falling to unqualified and partisan judges on the Court, the fate and legitimacy of the judiciary are at stake.
As time moves on, these justices rule further and further to the right, far away from the country’s will. And such a position creates strain on public trust. Already, the Court has seen its popular support decline significantly to 40 percent approving compared to 54 percent last year. It was the lowest approval rating the Supreme Court has received since Gallup began recording.
If Justice Breyer is replaced by another conservative justice, this trend of right-wing rulings and public disapproval will further delegitimize America’s highest court. As such, replacing Breyer with a long-term check to the right is necessary.
Now that Biden has won his election and has control of both the House and the Senate, it is the perfect time to replace Breyer to prevent a further shift in the Court, and we might not get another chance to prevent the Court’s shift rightward.
If we are to avoid the mistakes that came with the late Ginsburg’s seat, we must take the initiative and prevent the GOP from further destroying the Court’s value.