As a matter of full disclosure – I was a student of Justice Stephen Breyer at Harvard Law School a half century ago. He was a great professor and I have admired his career as a jurist including his 27 years on the United States Supreme Court.
As a matter of further full disclosure – For almost all of the past year I have been restraining myself from writing an open letter to Justice Breyer that was going to amount to a primal scream. Ever since Joe Biden was elected president it was clear that Justice Breyer needed to resign so as to give President Biden an opportunity to select a younger person who could at least try to hold the line against the protoconservative Supreme Court majority.
The specter of the Ruth Bader Ginsburg succession debacle hangs over the land as that Supreme Court majority is now hard at work eviscerating and obliterating so much of the progress that has been made during the past half century including civil rights, environmental rights, criminal justice, women’s rights, voting rights and gender equity. And it just didn’t have to happen that way.
If – a very big IF, Justice Ginsburg had resigned and given then President Obama the opportunity to appoint a like-minded successor (much as Trump promised Supreme Court Justice Anthony Kennedy) that Obama nominee would have joined Justices Breyer, Kagan and Sotomayor as a firewall against the then unlikely possibility of Donald Trump nominating justices to the highest court in the land.
But she didn’t resign because she JUST KNEW that Hillary Clinton was going to be the next president and she would have plenty of time to decide when she would retire. Of course as it turned out she had to try and outlive the Trump presidency and we all know how that worked out – she almost made it. Almost.
There is no doubt that this specter had to be on the mind of a man of such high intellect. His delay in retiring may have been based on his belief that the principles of nonpartisanship on the Supreme Court should rule his decision – and nothing else. But clearly principles don’t mean a thing if the other side doesn’t believe in them.
Perhaps when Mitch McConnell announced that if the Republicans assume control of the Senate in 2023 that he would make sure to block any Biden appointment to the Supreme Court for the remaining two years of his presidency Justice Breyer realized that he had no choice but to do the honorable thing and make sure that there are at least three justices on the Supreme Court who actually believe in justice and not advancing a sociopathic sociopolitical vision regardless of the facts or the law.
We may never know Justice Breyer’s inner thoughts. But it really doesn’t matter how he came to the right decision in these times of turmoil and institutional unease – results are all that matter.
So THANK YOU JUSTICE BREYER!