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Harvard Law School professor Randall Kennedy shocked the legal world in 2011 when he called for the immediate removal of two members of the liberal wing of the U.S. Supreme Court: Ruth Bader Ginsburg and Stephen Breyer.
Saying he was “responsible for what they did,” Kennedy argued in an essay for The New Republic that the septuagenarians – who were nominated by Bill Clinton – should be set aside for Democratic President Barack Obama to nominate younger Liberals to replace them. to seats for life in the nation’s highest court.
He also ignored the call. Last year, Ginsburg he died of 87 years and its seat was occupied by Donald Trump few days before November presidential election with Amy Coney Barrett, tilting the scales of the nine-member bench by 6-3 in favor of the Conservatives.
Now, with Democrats in the White House and controlling the Senate by the narrowest margin, 82-year-old Breyer faces new demands to step down after nearly 27 years in court.
As the Supreme Court nears the end of his term, he has been the target of a fierce public pressure campaign presenting political challenges for President Joe Biden as progressives worry about a Conservative-dominated Supreme Court ruling above all else. voting rights and weapons to affirmative action i abortion.
“We’ve seen the tragic consequences of rolling the dice, and that just can’t be allowed to happen again,” said Tré Easton, of the progressive group Battle Born Collective. “The Republican Party does not pretend that the court is this apolitical institution and the left, progressives, Democrats, cannot be allowed to pretend to be apolitical either.”
Those calls became stronger this week after Mitch McConnell, the top Republican in the Senate, suggested he would get in the way of a Biden candidate if his party takes control of the upper house in the interim periods. next year. Presidents select Supreme Court judges, but require confirmation by a simple majority in the Senate.
McConnell famously rejected take on Obama’s candidacy for Merrick Garland to fill the vacancy created by the death of Conservative Antonin Scalia in 2016, setting the stage for Trump to choose Neil Gorsuch.
McConnell’s latest comments sparked outrage among progressives. “Anyone who doubts that Stephen Breyer would not retire could end up in a disaster should pay attention to Mitch McConnell,” said Brian Fallon, executive director of left-wing group Demand Justice.
Fallon’s group has led a “Breyer Retire” campaign, launching a advertising campaign and hire a truck with a billboard to surround the courthouse with the message: “Breyer, retire. It’s time for a black woman of Supreme Court justice. There is no time to lose.
Some law scholars have joined, including the dean of the University of California at Berkley School of Law, Erwin Chemerinsky, who wrote in a Washington Post op. ed last month, Breyer should have “learned from Judge Ginsburg’s mistake” and left office now warning, “With a 50-50 Senate, anything is possible.”
Biden has vowed to appoint the first black woman to court in the event of a vacancy. Ketanji Brown Jackson, widely regarded as one of the leaders, was confirmed earlier this week by the Senate to serve on Washington DC’s prominent federal appeals court.
A Breyer retirement could be one of Biden’s only opportunities to appoint a Supreme Court judge in the near future, except for any unexpected developments. Clarence Thomas, a recognized curator appointed in 1991, is the second oldest on the bench and ten years younger than Breyer.
Trump had the rare opportunity to fill three vacancies in his four-year term, following the deaths of Scalia and Ginsburg and the retirement of Anthony Kennedy. Like many Republican lawmakers, he campaigned with the promise of one conservative court to attract grassroots Republican voters who sit firmly on issues such as guns and abortion.
Biden, for his part, has largely avoided addressing court-related issues, although earlier this year he set up a bipartisan commission to consider reforms, including the incorporation of more Supreme Court justices.
Asked in April about the president’s opinion on petitions for Breyer to step down, White House press secretary Jen Psaki said it was the court’s decision. This week, Biden said of McConnell’s veiled threat: “Mitch has been nothing but ‘no’ for a long time, and I’m sure he means exactly what he says. But we’ll see.”
Supreme Court judges are usually narrow-minded, rarely giving interviews or commenting on issues. Breyer, a graduate of Harvard Law School and a former professor whose resume includes stays in the U.S. Department of Justice and the U.S. Court of First Instance Court of Appeals, has said little about his plans.
He published headlines earlier this year when he gave a lecture at Harvard entitled “The Authority of the Court and the Danger of Politics,” in which he rejected calls to “package” the court with additional judges and defended the independence of the institution from whites. Chamber and Congress.
“If the public sees judges as dressed politicians, their confidence in the courts (and in the rule of law itself) can only diminish, diminishing the power of the court, including its power to act as a control over others. branches, ”Breyer said.
Jonathan Turley, a professor at George Washington University School of Law, said the speech suggested Breyer might not be good friends with the political campaign calling for his departure.
“There’s no question about Breyer’s continued intellectual ability or abilities, so the question is whether he feels he needs to get out of court,” Turley said. “Judge Breyer may conclude that it is more detrimental to the court as an institution to yield to such campaigns than to remain in court.”
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