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Breyer retires: What's next for Supreme Court?

US Supreme Court Justice Stephen Breyer's replacement could begin to shift the Court more toward the Left and eventually result in a Democratic majority.
 – Photo by The World Affairs Council of Philadelphia / Wikimedia

U.S. Supreme Court Justice Stephen Breyer recently announced that he would be retiring after 28 years on the Supreme Court. At 83 years old, Breyer is the oldest of the nine justices on the Court and 1 of 3 justices appointed by a Democratic president.

During his tenure, Breyer challenged the constitutionality of the death penalty and showed support for abortion rights, according to an article from CNN. His announcement has implications on the Court, the U.S. Senate and the upcoming midterm elections.

Ross Baker, a distinguished professor in the Department of Political Science, said he believes the Democratic Party put pressure on Breyer to step down before the upcoming midterm elections while the Democrats still have control over the nomination process.

“It was these very subtle suggestions and op-eds and sort of off-the-cuff statements that it would be a good idea if he stepped down,” he said. 

Baker said that Democrats likely wanted to avoid another Left-leaning Supreme Court justice dying during their term and being replaced by a more Conservative candidate, as in 2020 when former Supreme Court Justice Ruth Bader Ginsberg died and was replaced by Justice Amy Coney Barrett.

There are two women being considered for Breyer’s replacement, J. ​Michelle Childs and Ketanji Brown Jackson, who both have the potential to receive bipartisan support from senators, which could help Democrats achieve the 50-vote minimum necessary to confirm the new justice, Baker said.

Baker said that by following through on his promise to appoint a Black woman to the Court, President Joseph R. Biden Jr. could help Democrats keep the support of Black voters. In addition, he said this decision could give voters a good reason to get out to the polls in the November elections after a lackluster effort to pass impactful voting rights bills.

“There’s a real desire on the part of Biden to try to compensate African American supporters for the lack of a very muscular voting rights bill,” he said.

Childs is from South Carolina and has the support of Rep. James Clyburn (D-S.C.) and Sen. Lindsey Graham (R-S.C.), both of whom could help garner support for her appointment to the Court, Baker said.

Though, he said Childs could still face opposition and criticism from the far-Left wing of the Democratic Party for her background in corporate law and lack of experience with civil rights issues.

Baker said that Jackson was recently appointed to the U.S. Court of Appeals for the District of Columbia and confirmed by the same senators who could vote to confirm her to the Court if she was nominated.

Saladin Ambar, a professor in the Department of Political Science and a senior scholar at the Center on the American Governor at the Eagleton Institute of Politics, said that it is likely that Breyer will be replaced by a more Liberal justice, which could have a significant impact on the future of the Court.

“Breyer wasn’t the most Left or Liberal justice and perhaps Biden will have the opportunity to shift the court further Left at least among the Liberal-leaning Justices on the court,” he said.

Ambar also said this nomination could be the first step in shifting the Court more toward the Left and eventually regaining a Democratic majority.

Additionally, this could be an opportunity for the Democrats up for reelection in November to pull the focus away from inflation and the coronavirus disease (COVID-19) pandemic and, instead, tout a successful Supreme Court appointment, he said.

“Having another woman certainly changes the dynamic and the face of the Court to be sure — having a Black woman is historic," Ambar said.

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