The Politicization of Justice Retirement

by Jesse Kapstad

Image: Politico


What You Can Do:

  1. Learn more about Justice Breyer here: https://www.law.cornell.edu/supct/justices/breyer.bio.html 
  2. Educate yourself on the nature of the Supreme Court: https://www.supremecourt.gov/about/about.aspx 
  3. Listen to the oral arguments of Justice Breyer and the other Supreme Court Justices: https://www.supremecourt.gov/oral_arguments/argument_audio/2021

Should Supreme Court Justices retire to uphold their political party’s ideologies? Are justices truly separated from the political parties or do their ideological leanings interfere with what is intended to be an impartial law review process? 83 year old Supreme Court Justice Stephen Breyer faces these questions as he considers stepping down from the bench [1]. His retirement could alter the ideological leanings of the Court, affecting any legislation from the legality of abortion to the federal death penalty. Ultimately, justices cannot completely detach themselves from the lenses through which they see the world, but they should act―to the best of their ability―in an impartial manner that focuses on the legislation only. When contemplating retirement, Justice Breyer may consider the impact that he has had on court rulings and the change a successor may bring, but he should not make his final decision based on party loyalty. 

Nominated by President Clinton, Justice Breyer took his seat on August 3, 1994. Breyer has a reputation for his optimism and cooperation between the liberal and conservative wings of the court throughout his 25 years of service. Breyer promotes a practical interpretation of the Constitution, contrasting the originalism approach favored by some of the conservative members of the court, which interprets the Constitution from the perspective of the founding fathers [2]. Contrasting interpretive approaches reflect how people view the world. It is through these interpretive approaches that society polarizes the views of the justices on the Supreme Court by simplifying the narrative. That is to say, society oversimplifies the rulings of the justices, solely fitting them into progressive and conservative categories. As a result, the Democratic and Republican parties wrestle for political control through the balance of liberal and conservative judges. Breyer’s retirement is largely impactful as it affects the next Supreme Court appointee.

As the “final arbiter of the law,” the duty of the Supreme Court of the United States (SCOTUS) is to interpret the Constitution and all laws passed in the United States [3]. The justices’ job is to define the language used in legislation that gets passed and to strike down laws that violate a citizen’s constitutional rights. Breyer played an important role in many court rulings, including Stenberg v. Carhart, Lawrence v. Texas, and District of Columbia v. Heller. In Stenberg v. Carhart, decided in 2000, Justice Breyer penned the majority opinion of a thin margin upholding women’s reproductive rights. The court was split 5-4 in regards to a Nebraska ban on partial-birth abortions, ruling the law’s language incomplete as it imposed an “undue burden” on women [4]. Justice Breyer’s impact on the Supreme Court is especially important considering the recent pivot of the court on controversial issues such as reproductive rights. With such polarizing issues in contention, Breyer’s retirement will impact the ideological balance of the Supreme Court. While progressives favored Justice Breyer’s stance on that ruling which aligned with his own, he must first remember that his job is to uphold the values of a bipartisan justice. It is of the utmost importance that Breyer does not devolve his retirement into a political play by simply siding with his party.

By default selection, the Supreme Court should be representative of the United States populations. Currently, the court consists of 3 female justices and 6 male, of which 3 justices are liberal-leaning and 6 are conservative-leaning [5]. Many Democrats fear that if Breyer vacates his position during a time of Republican government control, the Republican appointee will tip the conservative court balance to 7-2. With such a heavy weight of conservative-minded justices, this skews the court to favor Republican goals based on implicit biases. Such an imbalance increases the risk of a biased reading of the Constitution. If Justice Breyer ignores the ideological impacts of his retirement on the court completely, he may incidentally politically charge the court. Therefore, Justice Breyer must take care not to be so apolitical that the court tips in favor of the other side.

A recent movement by Democrats to “pack the courts” by expanding the number of justices from 9 to 13 seeks to strongly politicize the Supreme Court by filling it with liberal-leaning justices so that it will vote in their favor. This movement is part of the growing ideological battle with the Republican party, which appointed three conservative justices in the span of four years [6]. If these developments continue, the Supreme Court will quickly become a political tool in which the party in control leverages a justice’s retirement as a means to appoint a figurehead. The Supreme Court must avoid interpretation outside the bounds laid out by the Constitution, and as a result Judges should not explicitly politicize decisions or the court. In effect, the values of individual members of SCOTUS should not impact the decision reached by all nine. Yet a justice’s own interpretation of the Constitution can have a massive impact as to whether a decision receives praise from Democrats or Republicans. Politicians may try to use the justices’ ideological leanings as means of political leverage for their party. A justice must be mindful of their own social opinions to avoid influencing their Constitutional studies. 

Justice Breyer voices that there are many things to take into account when making his decision. Ultimately, he says that “my experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” adding that “a judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.” Contrastingly, he does not want to be replaced by someone “who will just reverse everything [he’s] done for the last 25 years” [7]. The best decision is not necessarily apolitical, but rather one that has been depoliticized. In short, Justice Breyer must not ignore the impact on the influence of political parties that his retirement will bring. However, he should take great consideration to eliminate any party bias from his decision. Breyer should take into account the preservation of his legacy as a justice, but he should not put his political party before the Constitution.


References

[1] https://www.cnn.com/2021/07/15/politics/stephen-breyer-retirement-plans/index.html 

[2] https://www.oyez.org/justices/stephen_g_breyer

[3] https://www.supremecourt.gov/about/constitutional.aspx

[4] https://www.aclu.org/other/stenberg-v-carhart-legal-analysis

[5] https://cawp.rutgers.edu/facts/levels_of_office/us_supreme_court

[6] https://www.nbcnews.com/politics/supreme-court/democrats-introduce-bill-expand-supreme-court-9-13-justices-n1264132

[7] https://www.nytimes.com/2021/08/27/us/politics/justice-breyer-supreme-court-retirement.html