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Will Justice Breyer stay or will he go?

Despite Associate Justice Stephen Breyer’s liberal credentials, it’s liberals who lately have been publicly urging him to step down. Why?

The Supreme Court as composed October 27, 2020 to present. Front row, left to right: Associate Justice Samuel A. Alito, Jr., Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Stephen G. Breyer, and Associate Justice Sonia Sotomayor. Back row, left to right: Associate Justice Brett M. Kavanaugh, Associate Justice Elena Kagan, Associate Justice Neil M. Gorsuch, and Associate Justice Amy Coney Barrett. (Image: www.supremecourt.gov)

What is Breyer going to do?

As the Supreme Court nears end of its 2020 term, many court-watchers ask that with an urgency that equals or even surpasses their eagerness for the results of several high-visibility cases due to be announced in the next couple of weeks.

With good reason. For “Breyer” in that question is Associate Justice Stephen Breyer, and the question is whether Breyer, now 82 and nearly 27 years on the Supreme Court, will announce his retirement soon after the term ends. And while choosing justices has always been serious business, the process of late has become the focus of intense—sometimes, indeed, overwrought—attention.

There are several reasons for that. But certainly at the top of the list is the fact that, starting in the 1960s and continuing today, America’s version of the cultural revolution has obliged the Supreme Court (willingly, for the most part) to grapple with a seemingly endless stream of explosive questions of high sensitivity generally lumped together under the heading “social issues.”

As this written, for example, the court is expected shortly to announce its decision in a case from Philadelphia pitting LGBTQ claims against religious liberty in the foster care field (Fulton v. Philadelphia). And in the new term that begins next October, it will address the abortion issue in a case from Mississippi (Dobbs v. Jackson Women’s Health Organization) that prolifers hope—and prochoicers fear—will lead to weakening if not outright reversing Roe v. Wade, the 1973 decision that legalized abortion.

As a member of the Supreme Court, Justice Breyer is a pro-choice liberal. If he retires now, President Biden will name another pro-choice liberal to succeed him. That will not alter the current ideological makeup of court—six conservatives, three liberals. But the new justice most likely will be of an age to enjoy another two or three decades of active service on the court.

Despite Breyer’s liberal credentials, it’s liberals who lately have been publicly urging him to step down. In doing that, they point to the horrible example of Ruth Bader Ginsburg who, they say, ought to have retired at a time when President Barack Obama could name her successor. Instead, Ginsburg tarnished her image as a liberal icon by stubbornly remaining on the court in failing health until her death last September at the age of 87. At which point President Donald Trump chose conservative Amy Coney Barrett to succeed her.

The liberals want no repetition of that. Quit now, they urge Breyer, with Biden in the White House and a slim Democratic majority in the Senate.

A widely noted address by Breyer earlier this year at the Harvard law school may shed some light on what he decides to do. In remarks entitled “The Authority of the Court and the Peril of Politics,” he argued that the court’s authority rests upon the perception that it is not a political body but one guided by the application of principles of law to particular cases.

“If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches,” he said.

Breyer’s special target then was the renewed liberal interest in “court packing”—increasing the number of justices with an eye to securing decisions the liberals favor politically. Pressing a justice to retire in the interests of a partisan agenda looks like a comparably bad idea.


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About Russell Shaw 231 Articles
Russell Shaw was secretary for public affairs of the National Conference of Catholic Bishops/United States Catholic Conference from 1969 to 1987. He is the author of 20 books, including Nothing to Hide, American Church: The Remarkable Rise, Meteoric Fall, and Uncertain Future of Catholicism in America, and, most recently, Eight Popes and the Crisis of Modernity.

4 Comments

  1. Fun fact: Did you realize that the Casey court in 1992 was dominated by GOP appointed justices, by a margin of 8-1?

  2. Breyer is a pro-choice liberal.

    Right now the dems have control of the Senate – just barely, and one of their own will be doing the nominating, if it comes to that.

    The dems are obviously scared of the mid-terms – they could lose control of the Senate next year and so it makes sense to replace Breyer – NOW.

    Do the math.

  3. The Supreme Court IS now what Justice Breyer describes, “the court’s authority rests upon the perception that it is not a political body but one guided by the application of principles of law to particular cases. If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches. The democrats and the liberals have seen to this, no doubt. The founding fathers of this country are rolling in their graves!

  4. Democrats want many things. Indeed they do not just want them, they demand them. They are prepared to acquire them by any means necessary, including outright cheating and dismantling of the very nature of our government. Force someone into retirement or stuff the court. Win an election fairly, or cheat? Protect your citizens or grandstand about it as a racial issue and allow chaotic open borders in which children are abused and die enroute, and drugs and sex trafficking is free flowing. Acknowledge the real goodness and progress of America or pretend it is a racist nightmare? Can’t get enough votes to ensure permanent power? Then presto!! Make some tiny areas into States and magically get more Dem Senators. My, my, so many choices. But we know the answers, don’t we? There is a reason that the Justices have no age limit or defined term of office. Its so they can rule independently, and not be a political puppet. Every so often ALL justices rule unexpectedly, as they can do freely.But there seems to be nothing about freedom that democrats like or can respect. As one US President once said: sad.

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