Every July, when the Supreme Court completes its term for its summer break, the public strains for any indication a justice of the Supreme Court will announce his or her retirement. Last year, four months out from the presidential election, the big rumour was Clarence Thomas (the uber-conservative appointed by President George H. W. Bush in 1992 and confirmed amidst allegations of sexual harassment) would take a retirement hit for the team and step down. This would enable President Donald Trump, perceived to be on course to be ousted in November, to lock in the prevailing conservative majority on the court before Joe Biden could fill an ‘originalist’ vacancy.
It was not to be. Thomas, in apparent good health, had no intention of resigning — and certainly not now with Biden as president. The vacancy that did occur, however, was the passing of Ruth Bader Ginsburg, significantly, on the eve of Rosh Hashanah as I addressed last year. Her death gave Trump the unprecedented opportunity to fill her Supreme Court seat within two months of a presidential election with another originalist — locking in a decisive conservative majority on the court which could prevail for years after Trump left office.
In one moment, this captured both the scorched earth hyper-partisanship that has gripped the Supreme Court for decades — and now infests every confirmation fight to fill a seat — and the issue of each justice’s mortality, particularly each weighs whether to retire because the politics of their replacement ultimately affects their judicial legacy and the court’s future.
The back story for this July:
In February 2016, when Antonin Scalia died suddenly in Texas, President Obama had the opportunity to fill Scalia’s seat — undoubtedly with a liberal — and alter the balance of the court in favour of progressives. This was the moment when Senator Mitch McConnell, in command of a Republican majority in the Senate, drew the line: In a presidential election year, no filling of Supreme Court vacancies.
“The American people should have a voice in the selection of their next Supreme Court justice. Therefore, this vacancy should not be filled until we have a new president,” McConnell said. “All we are doing is following the long-standing tradition of not fulfilling a nomination in the middle of a presidential year.”
This was a defining moment of McConnell’s legacy as the unrelenting driver of conservative dominance of the judiciary.
But there is no such tradition, as expert studies attest. On the contrary, this was unprecedented and perhaps the rawest successful exercise of partisan political power over the Supreme Court in the Senate’s history. Obama’s nominee, Merrick Garland, one of the most distinguished jurists of the time, was denied even a hearing by the Judiciary Committee and never came to a vote on the Senate floor. (But with Biden as president, Garland is now the Attorney General, and confirmed last March 70-30, with 20 Senate Republicans voting for him.)
Then Trump won the 2016 election and could fill the Scalia seat (with strong conservative Neal Gorsuch) and when Justice Kennedy, another conservative, retired in 2018, precisely to ensure no seismic shift in the court’s makeup, Trump nominated Kennedy’s protégé, Brett Kavanaugh. McConnell pushed his confirmation — also dogged by accusations of sexual assault — through on a vote of 50-48 just one month before the voters could decide the Senate’s makeup. He saw no need to wait for the result of the Senate elections that year before confirming a new justice.
Before Scalia’s death and the unleashing of McConnell’s contortions and back-peddling, Ginsburg was subject in the later years of Obama’s presidency to intense public entreaties to resign and let her seat safely pass into a successor faithful to her ideals of justice.
She refused. In an interview in 2014, she said:
“Who do you think President Obama could appoint at this very day, given the boundaries that we have? If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So, anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided. As long as I can do the job full steam…. I think I'll recognize when the time comes that I can't any longer. But now I can. I wasn’t slowed down at all last year in my production of opinions.”
She did her job full steam to the end; her iconic status never higher or more secure than when she died. She was the first Supreme Court justice to lie in state in the Capitol. But with her passing, Trump could, under McConnell’s iron grip over the Senate, lock in conservative and former Scalia clerk Amy Comey Barrett for taking Ginsburg's seat. McConnell drove the political strategy from the first possible moment to secure an enduring political achievement for the conservative cause.
The new McConnell rule for a presidential election year was to declaim that if the president was of the same party that controlled the Senate, there are no issues with confirming a new justice: “You have to go back to 1880 to find the last time, back to 1880s to find the last time a Senate of a different party from the president filled a Supreme Court vacancy created in the middle of a presidential election. That was entirely the precedent."
Barrett was confirmed seven days before the 3 November 2020 election by a 52-48 vote in the Senate. Republicans ultimately lost control of the Senate in that election. McConnell’s victory, even while losing the Senate, is that the Supreme Court today reflects a solid 6-3 conservative majority.
Today, as July approaches, the two oldest conservatives, Thomas and Samuel Alito, are 72 and 71, respectively.
The oldest of the three liberals is Stephen Breyer, age 82. The harbinger of the confirmation wars is now on his doorstep, and there is immense pressure on him to resign — now — and let Biden fill his seat to preserve a semblance of liberal presence on the court and lower the hyper-partisan temperature.
McConnell is not biding his time. If the Republicans regain control of the Senate in the 2022 midterms, there is no way a Biden nominee for the court would be approved for a vacancy in the presidential election year of 2024. In an interview on 14 June, McConnell said
“Well, I think in the middle of a presidential election, if you have a Senate of the opposite party of the president … I don’t think either party if it controlled, if it were different from the president, would confirm a Supreme Court nominee in the middle of an election. What was different in 2020 was we were of the same party as the president. And that’s why we went ahead with it.”
But what if the Republicans take the Senate next year and there is a court vacancy in 2023 — 18 months before the next presidential election — and Biden nominated a great jurist to join the court? What then? “Well, we’d have to wait and see what happens,” McConnell said. Translation: It’s not going to happen and he’ll do everything he can to stop it.
Justice Breyer is riding high right now. He just authored the opinion that won a 7-2 majority to save the Affordable Care Act — Obama’s most enduring achievement as president.
It is impossible to predict what Justice Breyer will do.
But what is clear is that the flood of pressure on him to step down next month will become an avalanche of demand that he does not deprive President Biden and the Democratic majority in the Senate to preserve his legacy by confirming — before the midterms — a successor worthy of all that the good justice has done.
We are awaiting his ruling. Does Stephen Breyer concur with the opinions of Justice Kennedy or Justice Ginsburg?