Stephen Breyer Is Still Alive?
The next election could be the most lopsided since 1984, and the supposed conservative SCOTUS majority may increase to seven.
When I read on Wednesday afternoon that Justice Breyer was stepping down from the Supreme Court, I had one of those “Huh?” moments each of us has with oldster celebrities, comparable to when I learned recently that Dick Van Dyke (1925-?) is still with us. I thought: “I remember him. He’s the one who wrote about Proust for the New York Review of Books. Amiable, cultured. Has read at least one fairly long book, which makes him cleverer than 99 percent of all American public officials, elected or appointed. Rowed for the University of Chicago before the invention of television—wait, maybe that was John Paul Stevens. Anyway, he’s still there?”
Obviously I was mistaken in thinking that Breyer, who is actually the most senior of the court’s liberal justices, had retired or even gone to his eternal reward. Deductive reasoning alone should have told me that someone must have been steering the ship since the death of Ruth Bader Ginsberg. But in my own defense, I have to wonder whether I was really wrong in assuming that whatever Breyer has represented in American public life is as dead as I had blithely assumed he was.
I don’t just mean the ethos of old-fashioned liberalism that Breyer embodied, one that assumed among other things a certain geniality of manner and cultural aspirations that extend slightly further than Beyoncé and Netflix: I mean all his sentimental gas about the Supreme Court transcending supposedly narrow partisan considerations. For years now anyone with a non-algor mortis level body temperature has known that so far from being nobly above the fray, the high court is our most partisan institution.
In fact, as I have argued for years now, descriptively speaking the high court is not a judicial body at all but an unelected legislature, a post-17th Amendment replacement for the technically redundant Senate. The compromise with John Roberts that Breyer appears to have brokered over the Affordable Care Act was not a judicial ruling in any previously recognizable sense of the word but the work of a revising upper chamber, like the British House of Lords. This is commonly held to be Breyer’s greatest achievement, and if it looks rather thin today it is mostly because Republicans accepted long ago that the overwhelming majority of Americans do not oppose the expansion of Medicaid or support the denial of health insurance coverage to pregnant women.
Now of course the question is who will replace him. My own view is that Democrats are as likely to install another Supreme Court justice this year as they are to change their minds about masks or vaccine mandates. Mitch McConnell will see to that. Current Senate rules make it likely that we are all going to be watching Merrick Garland II: The Secret of the Ooze: something-something motion to discharge, something-cloture, only three Republicans sighing about the recalcitrance of their colleagues (my bet is on Mitt Romney), credits roll. Nor is it unthinkable that an eight-justice court will remain with us only through the midterms. For all I know, the next justice will be nominated by President Dave Portnoy in January 2025. (Imagine Associate Justice Frank the Tank’s contribution to a volume like this one.)
Breyer’s decision to retire finally, after years of not-so-subtle groaning from progressives, is a reminder that Democrats are pessimistic not only about this year’s midterms but about the next presidential election. Will Uncle Joe actually run for re-election? Will the minority of lunatics who cannot see that Kamala Harris is perhaps the least likable national politician of the last half century (which is saying something considering that she holds an office Dick Cheney occupied only a decade and a half ago) settle on another candidate? If not, the next election could be the most lopsided since 1984, and the supposed conservative majority will increase to seven.
Time to start thinking about repealing Griswold?
Matthew Walther is editor of The Lamp and a contributing editor of The American Conservative.