Outside of Packers Special Teams Coach Maurice Drayton, was anyone under more pressure to quit their job than Supreme Court Justice Stephen Breyer?
Unlike Drayton, no one was accusing Breyer of being totally incapable of doing his job. Despite being 83-years old, there was no secret video of him nodding off during oral arguments. There were no leaked opinions riddled with nonsensical phrases like ‘It’s time for us to do what we have been doing and that time is every day.’ Amazingly for a guy born before 2000, there were no accusations of inappropriate interactions with women, and as you would expect from someone born before 2000, there were no tweets that everyone could find offensive.
Personally, I was impressed with his retirement announcement press conference with President Biden yesterday. Breyer was definitely lucid, sharp, and his comments about his confidence that his grandchildren and their children would still be taking part in the “Grand Experiment” that is the United States of America got me a little teary-eyed. I was thinking: “Who brought Ronald Reagan’s speechwriters out of retirement for this guy? We need to hear more of this to get us out of national malaise!”
Yet those who believe in an expansion of the power of the federal government were quietly celebrating on the inside that Breyer has decided to step down now. Not because he wasn’t looking outside the framework of the Constitution every chance he could in rendering his rulings. Those folks are celebrating because now they don’t have to worry about Breyer dying after Republicans likely regain control of Congress this fall.
It was a dread that conservatives felt when Justice Antonin Scalia died while President Obama was in office—and a fear that consumed progressives when Justice Ruth Bader Ginsberg died while President Trump was in office. I just roll my eyes whenever I see an article about Ginsberg mention that she “tarnished her legacy” by failing to step down from the High Court while Obama was in office—allowing Amy Coney Barrett to inherit her seat. It wasn’t like in the three years after Obama left office that Ginsberg didn’t provide the minority opinions that her worshippers wanted—it just that someone less likely to die should have been the ones writing them. If that it isn’t the definition of being a “useful tool”—I don’t know what is. Besides, I’m sure that if you had asked the Notorious RBG, up to her last day she was 100% sure that she was going to outlive the Trump presidency.
Now Stephen Breyer won’t have to worry about his “tarnished legacy”, because he is giving President Biden plenty of time to work on his replacement while Democrats can get her approved in the Senate. As Marquette Law School Poll Director Charles Franklin pointed out on the show yesterday, the timing of the announcement is unusual, as Supreme Court Justices usually decide to step down at the end of their annual session. But that would come just a few months before the mid-term elections—and that might be cutting it too close—something Breyer probably heard from everyone who told him he was doing great….until they saw the President’s approval ratings.
While Republicans rail against the President’s immediate announcement that he will only consider a Black woman to fill Breyer’s seat, the nominee’s main attribute will not be race or gender. Nor will it be legal experience or rulings on controversial issues in the past. Instead, it will be that she is far less likely to die in the next 11-years—when odds are the political tide will swing back in favor of Democrats at all levels of the federal government and a sudden replacement would not change the ideological makeup of the court. The average age of Supreme Court nominees has been dropping the last few decades—making it less an honor for a storied career in jurisprudence, and more a game of who can stay there the longest.
So now the macabre “Supreme Court Death Watch” mantle is passed on to Justice Clarence Thomas. Thomas turns 74 this year—which is still 9-years younger than Breyer—and 13-years younger than Ginsberg when she died. But he hasn’t exactly been an example of perfect health—and the life expectancy for Black men is lower than that of their white male counterparts. I can guarantee you that there are conservatives that include in their nightly prayers that Clarence Thomas stay alive for at least three more years—at which point those folks will likely pray that he be “granted the wisdom to know now is the time to step down”. Unless of course a Democrat wins the White House again in 2024—in which case they will be praying he lives at least four more years after that.
