By Rachel Janfaza
Calls for liberal Justice Stephen Breyer to retire when the annual Supreme Court session ends in a few weeks are intensifying, following Sen. Mitch McConnell’s warning this week that he may block a Democratic Supreme Court nominee should Republicans win the Senate in the November 2022 midterm elections.
A group of 18 scholars on Wednesday signed onto an ad to be published Friday in The New York Times, paid for by the liberal group Demand Justice, calling on the 82-year-old justice to announce plans to step down, giving President Joe Biden the opportunity to nominate a younger liberal justice to the Supreme Court.
“It is time for Justice Stephen Breyer to announce his intent to retire from the Supreme Court. Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the statement says.
Anthony Michael Kreis of the Georgia State University College of Law said he signed onto the statement because it’s important that the court remain ideologically balanced and in line with the “median voter.”
“The court is really out of balance right now and doesn’t reflect the median views of the American people. That is further at risk if Justice Breyer doesn’t retire,” Kreis said, adding that abortion rights, gun rights and LGBTQ rights are at stake.
“If you look at the dynamics of the electorate and the realignment of suburban voters for example, we are seeing the nation trend in a more progressive direction, but the Supreme Court, as it is now, is firmly entrenched in conservative ideology,” he added.
“I see this ad as no different from an amicus brief urging him how to vote in a particular case, except his decision whether to retire is far more consequential than a single vote,” said Niko Bowie of Harvard Law School.
The ad is signed by Aaron Belkin of San Francisco State University, Niko Bowie of Harvard Law School, Paul Campos of University of Colorado Law School, Erwin Chemerinsky of University of California-Berkeley School of Law, Elizabeth Cohen of Syracuse University, David Singh Grewal of University of California-Berkeley School of Law, Brandon Hasbrouck of Washington and Lee University School of Law, Anil Kalhan of Drexel University School of Law, Jonathan Keller of Manhattan College, Daniel Kobil of Capital University Law School, Anthony Michael Kreis of Georgia State University College of Law, Daniel Morales of University of Houston Law Center, Samuel Moyn of Yale Law School, Eric Segall of Georgia State University College of Law, Michael Selmi of Arizona State University College of Law, Jennifer Taub of Western New England University School of Law, Miranda Yaver of Oberlin College and Zephyr Teachout of Fordham University.
Impact of Ginsburg’s death
“Justice (Ruth Bader) Ginsburg’s death is really fresh in all of our minds. If Justice Breyer truly cares about protecting the legitimacy of the court, as he says he does, and his own judicial legacy, then the responsible thing for him to do is to step aside,” Tré Easton, a senior adviser for Battle Born Collective — a progressive strategy and advocacy organization — told CNN.
The liberal Ginsburg died in September 2020 and was swiftly replaced by conservative Justice Amy Coney Barrett, establishing a 6-3 conservative-liberal court.
The ad from the liberal legal community comes on the heels of an ad also organized by Demand Justice and signed by 13 progressive organizations, which specifies that Biden should nominate the first Black woman to the Supreme Court, as he has previously pledged.
“With future control of a closely divided Senate uncertain, President Biden must have the opportunity to nominate a successor without delay and fulfill his pledge to put the first Black woman on the Supreme Court,” the statement, which was signed by Battle Born Collective, Black Lives Matter, Common Defense, Demand Justice, Justice Democrats, People’s Parity Project, Sunrise Movement, Take Back The Court Action Fund, Ultraviolet, We Testify, Women’s March, and Working Families Party, says.
The liberal-signed statement was published as an ad, also paid for by Justice Democrats, in Politico Wednesday.
The scholars and progressive organizations are joined by some Democratic members of Congress who have also called for Breyer’s retirement this week.
On Sunday, Democratic Rep. Alexandria Ocasio-Cortez of New York told CNN’s Dana Bash that she thought Breyer should retire at the end of this term. Two days later, in an interview with CNN’s Poppy Harlow, Democratic Rep. Ted Lieu of California said he agreed with Ocasio-Cortez but added that he thought Breyer should retire “prior to the midterms.”