Carson’s Commentary: How will ‘Bretirement’ affect the Supreme Court and beyond?

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Associate Justice Stephen G. Breyer is the first justice on the left, sitting down. Stephen Breyer officially announced his retirement from the Supreme Court of the United States on Thursday, Jan. 27th. Photo courtesy of Wikimedia

First, an update on Boris Johnson and “Partygate”: Sue Gray’s report has found definitive evidence of Johnson attending at least 12 Downing Street gatherings during his own COVID-19 lockdowns. He now has just a 29% approval rating, so Britons could be saying bye-bye to Boris very soon. 

Now to the main course. On Thursday, Jan. 27, Associate Justice Stephen Breyer officially announced he will retire from the Supreme Court of the United States. The first reports of this news actually surfaced a day earlier, and they immediately caused Americans to speculate about the potential political chain reaction. 

Unlike the circumstances surrounding Tom Brady’s retirement last weekend, those surrounding Breyer’s retirement are quite certain. Having served on the Court since 1994, the 83-year-old will step down at the end of the 2021-22 SCOTUS term. His decision is hardly surprising, as progressive Democrats like Alexandra Ocasio-Cortez and Mondaire Jones began pressuring Breyer to retire last year. 

Even Senate Majority Leader Chuck Schumer (D-N.Y.) hopped on the “Bretirement” train in July, claiming his caucus stood “ready to expeditiously fill any potential vacancies on the Supreme Court should they arise” — seeming a nod to his progressive House counterparts. 

What makes Democrats so eager to do away with the reliably liberal Breyer? Their reasoning is purely political, but grounded in recent history. In February 2016, the death of conservative Justice Antonin Scalia left a vacancy that then-President Barack Obama attempted to fill with Merrick Garland — now the U.S. attorney general. However, Republicans controlled the Senate at the time, and then-Majority Leader Mitch McConnell (R-KY.) argued a new justice should not be confirmed until after the 2016 election. McConnell’s obstruction succeeded, and Scalia’s replacement, fellow conservative Neil Gorsuch, was appointed and confirmed during President Donald Trump’s first months in office. Senate Republicans 1, Election-Year Democrats 0. 

Fast forward to September 2020, which brought the death of a liberal icon, 87-year-old Justice Ruth Bader Ginsburg. To fill the seat left by Ginsburg’s death, Trump quickly nominated a 48-year-old federal judge, Amy Coney Barrett. This time, McConnell and the GOP found no fault in confirming a nominee just weeks before a presidential election. Despite this obviously inconsistent reasoning, Barrett sits on the Court today as one of six conservative-leaning justices. Senate Republicans 2 (but really 3, as they flipped a liberal seat conservative), Election-Year Democrats 0. 

This time, Democrats hope to learn from the past. They are determined to prevent the aging Breyer from getting Garlanded if they lose the Senate next year, or Ginsberged and replaced by another Barrett if they lose the White House in 2024. Schumer has said he wants the process of confirming Breyer’s replacement to take no more than 30 days. 

With that being said, everything comes down to President Joe Biden’s chosen nominee. In accordance with one of his 2020 campaign promises, Biden vowed to nominate a Black woman shortly after Breyer’s official announcement. So who does the president want to fill the seat?

Judge Ketanji Brown Jackson speaks at the Third Annual Judge James B. Parsons Legacy Dinner. She is a potential nominee for the Supreme Court. Photo courtesy of Wikimedia

Two names seem to top his list: Ketanji Brown Jackson and Leondra Kruger. Jackson, a 1996 Harvard Law graduate, has been a circuit judge on the District of Columbia Court of Appeals since Biden appointed her to the position last year. Interestingly, Jackson was a law clerk for Breyer from 1999 to 2000, and he described her as a “brilliant mix of common sense and thoughtfulness.” Her judicial record includes cutting sentences for federal drug offenders and striking down Trump-era restrictions on employee unionization efforts. 

Kruger, a 2001 Yale Law graduate, has served on the California Supreme Court since 2015. She began her legal career clerking for the late Justice John Paul Stevens from 2003 to 2004, and served as the U.S. principal deputy solicitor general under Obama from 2010 to 2011. During this time, Justice Elena Kagan said Kruger was “one of the best advocates in the Department of Justice.” Upholding California’s Proposition 69 — the requirement for police to take DNA samples of everyone arrested for a felony — is Kruger’s most consequential ruling. 

Other potential nominees mentioned in Monday’s issue of The Daily Campus include Sherrilyn Hill of the NAACP, Candace Jackson-Akiwumi of the 7th Circuit Court of Appeals, J. Michelle Childs of the U.S. District Court of South Carolina and Holly A. Thomas of the 9th Circuit Court of Appeals. While I believe Jackson and Kruger are the likeliest picks, it is worth noting who else is in consideration. 

But of course, no nominee can go anywhere unless the Senate Democrats get their act together. With the body split 50-50 and Vice President Kamala Harris prepared to break a tie, they should have no problems — well, that’s what they thought last year about passing a voting rights bill and Biden’s “Build Back Better” package.

This is a picture of Krysten Sinema in a discussion. Krysten Sinema has been a thorn in Democratts’ side especailly when it came to allowing Biden’s agenda through Congress. Photo courtesy of Wikimedia

The issue facing Democrats is obvious: “Sinemanchin” obstruction. Senators Kyrsten Sinema (D-Ariz.) and Joe Manchin (D-W.V.) were a thorn in Democrats’ side throughout 2021, as both adamantly opposed any changes to the Senate filibuster to allow Biden’s agenda through Congress. But could they interfere again?

Simply, I don’t think so. Sinema has actually been quite liberal on most issues besides filibuster reform, and 2013 Senate rules establish you can’t filibuster a SCOTUS confirmation. While the red-state Manchin is definitely a bigger question mark, he has already indicated his support for quickly confirming Biden’s nominee. Could this change? 

I’d be less surprised if Manchin flips, but I still doubt it. He ultimately seems to vote with his party when its leaders deem the issue in question a fundamental “threat to democracy.” His votes (a) to convict Trump on both counts of impeachment last February and (b) against the Barrett confirmation when Democrats thought his vote would actually matter are examples of this personal policy. As nothing is certain in a 50-50 Senate, I expect Manchin to continue this pattern.

Procedural details are nice, but what impact will the appointment of a young liberal Black woman to SCOTUS have on the Court and this year’s midterm elections? People love to speculate about the impact of a new justice on the Dobbs v. Jackson abortion case; however, the Court will actually deliver this ruling before Breyer retires at the end of this term. 

But while these anticipated conservative rulings — such as the impending NYSRPA v. Bruen gun rights decision — may not have a measurable impact on the law, they could energize Democratic voters ahead of the midterms in three ways. 

First and most consequential is the Dobbs abortion decision. If overturned by a 6-3 (or 5-4 if Chief Justice John Roberts pulls a Manchin when his opinion doesn’t actually matter) margin, you can expect women — but especially suburban and low-income women — to vote blue in droves. 

Similarly, pro-gun rights rulings like in NYSRPA v. Bruen could bring out the Gen Z vote. This is a generation that grew up during the (ongoing) school shootings era, and now those born as late as 2004 are old enough to vote. In both cases, significant margins could be enough for Democrats to maintain their seats in purple congressional districts, such as my native Pennsylvania District 7. 

Lastly, confirming a reliably-liberal young Black woman could boost Biden and Democrats’ performance among Black voters, which has completely tanked as of late. Despite winning 87% of Black voters against Trump in 2020, Biden’s approval rating among Black voters dropped to 83% by last April and hovers at just 64% today, according to an NBC News poll. If Democrats want to maintain majorities in Congress, they must stop the bleeding. 

Though it is much too early to say any of this with confidence, any SCOTUS appointment always has the potential to shake up the political landscape. One thing is for certain: The ride to confirming the first Black woman to America’s highest court will surely be bumpy. 

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