- Progressives are calling on Supreme Court Justice Stephen Breyer to retire.
- “For the good of the country, now is the time to step aside,” an ad that ran in Politico read.
- The call comes after Sen. Mitch McConnell said he would block future nominees to the court.
- See more stories on Insider’s business page.
Progressives have mounted a pressure campaign to get Supreme Court Justice Stephen Breyer off the bench while the Senate is still under Democratic control, which would clear the way for President Joe Biden to appoint his successor.
Eighteen legal academics endorsed an ad set to run in the New York Times on Friday, urging the 82-year-old Breyer to step down to avoid a possible scenario in which Republicans win the Senate in 2022 and block future judicial nominees put forth by Biden.
“It is time for Supreme Court Justice Stephen Breyer to announce his intent to retire,” reads the letter, signed by scholars at Harvard Law School, Yale Law School, the University of California-Berkeley School of Law, among others. “Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay.”
The news site Politico ran a full-page ad signed by more than a dozen major advocacy groups on Wednesday, which likewise called on Breyer to retire. Demand Justice, Women’s March, Black Lives Matter, Working Families Party and Sunrise Movement were among the 13 progressive organizations that signed on to the statement, first reported by The Huffington Post.
“If Breyer were replaced by an additional ultra-conservative justice, an even further-right Supreme Court would leave our democracy and the rights of marginalized communities at even greater risk,” the groups said in the ad.
“For the good of the country, now is the time to step aside,” the ad concludes.
Renewed calls for Breyer’s retirement come in response to Senate Minority Leader Mitch McConnell shutting down hopes for Biden to fill a potential Supreme Court vacancy if Republicans regain the Senate next year. In an interview with conservative radio host Hugh Hewitt on Monday, the GOP leader said it is “highly unlikely” that he would allow Biden to confirm a justice should a court seat open up under his Senate majority leadership.
Alarmed by that possibility, progressives are demanding that Breyer, the oldest Supreme Court justice, leave the bench.
“Anyone who still doubted that Stephen Breyer not retiring could end in disaster should pay attention to Mitch McConnell’s recent comments,” Demand Justice Executive Director Brian Fallon said in a statement. “If Republicans regain control of the Senate before Breyer’s replacement is confirmed, the Court’s legitimacy and our democracy will be at even greater risk.”
McConnell’s blocking of Garland: ‘The single most consequential thing I’ve done’
After Justice Antonin Scalia died in February 2016, McConnell famously blocked then-President Barack Obama’s pick to replace him, Merrick Garland.
The top Republican denied Garland a hearing or vote for his confirmation, leaving the seat empty until President Donald Trump won the 2016 election and took office. As Senate majority leader, McConnell advanced Trump’s nominee, Neil Gorsuch, to the Supreme Court in April 2017 – more than a year after the vacancy opened up.
The move sparked outrage among Democrats, yet McConnell has lauded the effort as “the single most consequential thing I’ve done in my time as majority leader of the Senate.”
Under Trump, McConnell ushered in two more Supreme Court justices, Brett Kavanaugh and Amy Coney Barrett, cementing a 6-3 conservative majority on the bench. The newly appointed justices replaced retired Justice Anthony Kennedy and the late Justice Ruth Bader Ginsburg, respectively.
McConnell is now signaling that if the GOP takes back the Senate next year and he once again becomes majority leader in 2023, he would rely on the same tactic to prevent a Biden nominee for the Supreme Court from moving forward.
“McConnell isn’t just saying the quiet part out loud – he’s shouting it in the face of Justice Breyer and Congressional Democrats and daring them to do something about it,” Aaron Belkin, director of Take Back the Court, another progressive group that endorsed the ad, said in a statement to Insider.
“At this point Democrats only have two choices: expand the Court or accept that Republicans will get to make the rules in perpetuity no matter how unpopular they are,” he added.
Breyer isn’t commenting publicly
Since Biden was sworn in and Democrats won the Senate in January, progressives have called for Breyer’s retirement to ensure that a new liberal justice will sit on the bench for decades to come.
Appointed by President Bill Clinton in 1994, Breyer has served for 27 years on the nation’s highest court. The current Supreme Court term ends in just a few weeks but Breyer has not yet publicly weighed in on his retirement.
Recently, he stressed the importance of having an independent judiciary, potentially suggesting that he won’t make a decision based on politics.
“My experience of more than 30 years as a judge … has shown me that once men and women take the judicial oath – they take that oath to heart,” Breyer said during a virtual lecture in April at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
“It is wrong to think of the court as just another political institution and it is doubly wrong to think of its members as junior league politicians,” he continued.
Some left-leaning congressional Democrats have also expressed their support for Breyer’s retirement in recent days. Rep. Alexandria Ocasio-Cortez of New York on Sunday told CNN that she agreed with fellow New York Rep. Mondaire Jones, who said Breyer should leave at the end of the court’s term.
Jones, a Democratic freshman, became the first member of Congress earlier this year to publicly urge Breyer to retire. Following McConnell’s comments this week, Jones said that “it has never been more urgent” for the justice to step down.
“It is good to see even more progressive leaders step forward to say that Breyer needs to step down now to protect his legacy,” Fallon, the executive director of Demand Justice, said in a statement.
Biden also faces pressure to fill a Supreme Court seat of his choice, previously promising on the campaign trail to put the first Black woman on the bench during his tenure. Yet White house press secretary Jen Psaki told reporters in April that the president would not push Breyer to announce his retirement.
“He believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court,” she said.
Progressives argue that another conservative justice on the court would tilt its ideological balance even further to the right and bring decades of jurisprudence that may threaten their priorities, which include universal health care, voting rights, LGTBQ+ protections, and other issues.
“Leaving this Supreme Court seat up to Democrats’ chances in 2022 is dangerous and would threaten the lives of women, immigrants, a stable climate and the future of our generation,” Sunrise Movement said in a statement to Insider.