The Problem isn’t Breyer, it is one of Constitutional Design

Put the frustration where it belongs.

Many liberals are increasingly frustrated (and concerned) about Justice Stephen Breyer’s unwillingness to retire. Breyer, appointed to the Court in 1994 by Bill Clinton, is 82. The combination of the fact that two of the last three recent exits from the Court was via death and the looming 2022 mid-terms all sum to a great deal of concern about who would replace Breyer when he passes or, at least, if Biden would be allowed to replace him after the 2022 mid-terms, given the decent probability that the Republicans could regain control of the Senate.

Hence, CNN reports: Liberals struggle with Breyer’s refusal to retire.

“Especially after Justice Ruth Ginsburg lost her bet on her own longevity, with the rest of us forced to pay, it’s astonishing that Justice Stephen Breyer would court the same risk,” Samuel Moyn, a Yale Law School professor who signed a letter with several other academics calling on Breyer to retire, said by email.

Another signatory of that letter, University of Houston Law Associate Professor Daniel Morales, told CNN by email that Breyer was “playing Russian roulette.”

Look, I understand this position. The situation is straightforward. Justices are powerful and serve for life. Breyer has been on the Court for almost thirty years and his replacement could serve just as long, maybe longer. The norm of allowing a sitting president to make a nomination that gets a vote is out the window and it is quite possible that after the mid-terms the Republicans will capture the Senate and hold any vacancy open until after the 2024 elections (if not longer).

I also understand that the current make-up of the Supreme Court is a living testament to the representational flaws of our constitutional system. The notion of presidential appointment and Senate confirmation assumes, at its core, that there is significant democratic legitimacy behind the Court. But this is not what has happened.

The Court currently has a 6-3 split of Republican nominees with Democratic nominees. This despite the fact that a Republican has only won the plurality of the vote once in the last three decades, and even then only in re-election.

Of the six Republican nominees, three were appointed by a president (Trump) who failed to win the popular vote. Further, those three were confirmed by a Senate that did not represent a majority of citizens. This is, plain and simple, a failure of representativeness in a key institution.

Two more of those appointees were appointed by a president (Bush) who initially came to office without winning the popular vote (and so would likely not even have been on the ballot in 2004 and therefore be in a position to make his two appointments). At least those appointees were confirmed by Senators representing a majority of the population.

It is also worth noting that George W. Bush served two terms, as did Barack Obama and they each had two appointments. Trump served a single term, appointing three. This, beyond partisan considerations, shows a substantially arbitrary pattern.

Keep in mind, the whole notion of appointment by the president and confirmation by the Senate is supposed to ensure a connection to what Madison called “the republican principle” of popular rule. That the system creates such profound distortions between the popular will and who serves in government underscores a huge problem if one believes in that republican principle of majority rule (which, again, is how Madison defined the term and certainly how modern scholars understand democratic governance).

Having said all of that, I find Breyer’s position on the politics of the Court to be remarkable:

Regardless, Breyer has shown sensitivity to perceptions of political influence at the court. He has an upcoming book about the threat of “political intervention” eroding public trust in the court. In April he gave a speech bashing the use of “liberal” or “conservative” to describe justices on the court.

At a minimum, he cannot be ignorant of the extreme politics associated with the nomination process and he has witnessed, along with the rest of us, the actions of McConnell in regards to the Scalia and RBG vacancies, as well as the obviously strategic resignation of his colleague Anthony Kennedy.

The notion that the exercise of governmental power can somehow be apolitical, or above partisanship, is either naiveté or denial.

And while I respect the fact the Breyer may simply want to keep his job or even thinks that he is somehow fighting the tide on all of this, the reality remains that the only way that he, personally, can guarantee that his successor has a chance of being some kind of continuation of his own views is to exit office before the 2022 mid-terms. In short, he has every right to make the choice he is, and haranguing him about it is almost certainly counterproductive.

Still, all of this is just reality brought to us by the creaky constitutional design we are working with on this topic. Instead of a logical, orderly, known process, we are left to the composition of our top court of appeals/constitutional court being left to the exigencies of mortality and/or the whims of the current holders of the seats. It is manifestly a bad way to determine the content of the Supreme Court of the United States.

Until we, collectively, focus on where the real problem is, no solutions will be possible.

FILED UNDER: Democratic Theory, Supreme Court, U.S. Constitution
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is a Professor of Political Science and a College of Arts and Sciences Dean. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Michael Reynolds says:

    The perfect: amend the constitution.

    The good: Hey, Mr. Chief Justice, I just wanted to let you know I’m quitting.

    One is practically impossible, the other is an email.

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  2. Stormy Dragon says:

    Regardless, Breyer has shown sensitivity to perceptions of political influence at the court. He has an upcoming book about the threat of “political intervention” eroding public trust in the court.

    Has he? Because it seems to me someone actually concerned about eroding public trust in the court would be more worried about the risk of partisan obstruction turning a court that is 6-3 against the majority into one that is 7-2 against the majority.

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  3. @Michael Reynolds: Yes, but the issue is not whether it is easy for Breyer to quit, it is.

    But his lack of insistence to do so is not the main problem.

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  4. drj says:

    @Steven L. Taylor:

    Even so, Breyer is making a bad situation worse.

    It’s not a surprise that he is catching flak for it.

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  5. @drj: No argument there.

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  6. gVOR08 says:

    Let’s focus not on the problem, but on the solution. We all understand the root causes. What do we do about them? Especially short term? Which gets us to what @Michael Reynolds: said. Do we collectively sit here and bitch or do we do what we can to pressure Breyer to see reality? We here, of course, can’t apply much pressure, but I hope someone high up in the administration is working on it. Does he have any kids we can offer cushy jobs to, like the GOPs did with Kennedy? Like Reynolds said in another context, sticks and carrots. There must be threats that can be made and incentives and excuses that can be provided.

    Is the problem only the rules or partly that GOPs cheat and play hardball and Ds don’t?

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  7. Barry says:

    @Steven L. Taylor: “But his lack of insistence to do so is not the main problem.”

    It is. We keep excusing people for quite deliberately performing extremely evil acts because they can get away with them, when they are in the elites.

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  8. Kathy says:

    @Steven L. Taylor:

    But his lack of insistence to do so is not the main problem.

    Quite so. it is the immediate problem.

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  9. @Kathy: I can accept that framing.

    But I will continue to stress that his quitting will not solve the main problem.

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  10. Michael Reynolds says:

    Morality, decency, a patriotism that puts the needs of your country ahead of your own personal preferences, these are obligations people cannot simply opt out of. Breyer is making a mockery of the values he supposedly holds. If he persists in this he’s no better than a Republican. And BTW, the same criticism applies to RBG.

    When the system doesn’t work it places an even greater burden on those who can, to take action within the law. Breyer’s life’s work will be undone because he lacks the moral fiber to do the right thing.

    When the elites fail to behave it sends a clear signal that virtue is for suckers and it’s every person for themselves. The very opposite of leadership.

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  11. HarvardLaw92 says:

    @Michael Reynolds:

    They almost exclusively still do not use email at all. They certainly don’t use it to communicate with each other. Hand written notes on heavy ivory notepaper hand delivered between chambers by clerks. I take your point though. Just clarifying.

    @gVOR08:

    Does he have any kids we can offer cushy jobs to

    He has three kids. One is an Episcopalian priest, one is the executive director of the Marshall Scholars Association, and the third is the founder / CEO of his own rather large company.

    There must be threats that can be made and incentives and excuses that can be provided.

    Legitimately no. Certainly not from the administration. The White House can’t pressure a justice to change his/her lunch order, much less pressure them to retire. They guard that lifetime appointment status jealously and they’re very much sequestered in a disconnected world only they’re allowed into. It almost amounts to being cloistered. I can’t say that I’m that familiar with Justice Breyer’s quirks; I will say that the few other justices I was very familiar with would have reacted to being pressured to retire by digging in and daring anybody to try & move them. Trying to apply pressure to pry him loose will almost certainly backfire. You’ll have to find somebody capable of appealing to him on a personal level.

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  12. Modulo Myself says:

    There’s a funny George Trow book where he mocks Harvard’s president for pretending to be surprised that the media world has an interest in the little old college he runs. I feel like the Supreme Court must run on the same juice. As in pretense upon pretense and “My heavens, they do seem to want me to retire.” I suspect that Breyer will retire, but doesn’t want to be seen doing it because of political consideration, and it could be he’s already made the deal and wants to make it seem like he’s hedging for his own benefit.

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  13. Modulo Myself says:

    Also, the Democrats could have expanded by the court on day one of the Biden administration and right now not a single thing would be different, except in the rulings of the court. The whole media outrage system can be worked to the Democrat’s advantage rather easily. It does not matter what you do, as Trump and McConnell have realized.

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  14. @Modulo Myself:

    I suspect that Breyer will retire

    The reality is, he can wait until next year to retire. There is no particular reason to do so now, save for the fact there is a nontrivial chance that a death in the Senate could change which party is in the majority before the elections.

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  15. Michael Reynolds says:

    @Steven L. Taylor:
    If we lose the Senate in 2022 there is zero chance the Republicans will let a Biden choice go through.

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  16. Teve says:

    Dianne Feinstein is 87. The average life expectancy of someone who is 87 years old is five years. I know she’s not the average person probably but I don’t like them odds. 50 senators are over 65. Ugh.

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  17. Teve says:

    In fact, 15 senators have died in office in just the past 40 years.

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  18. Scott F. says:

    Until we, collectively, focus on where the real problem is, no solutions will be possible.

    Of course, the real problem isn’t the creaky design of the constitution, but rather the near impossibility of amending said constitution. And of course, the real problem there is that it isn’t an objective of monied interests to amend the constitution, because it’s working for them as is. And finally, the real problem is that the monied interests get to call all the shots in both parties, due to the way we finance campaigns for office.

    In the end, the real problems come down to the money… and Fox News.

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  19. @Michael Reynolds:

    If we lose the Senate in 2022 there is zero chance the Republicans will let a Biden choice go through.

    Indeed. And to my point, if Breyer waits until, say, July 16, 2022, that would be fine (as long the death issue I noted did not come into play).

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  20. @Teve: Feinstein would be replaced with a Democrat.

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  21. @Scott F.:

    Of course, the real problem isn’t the creaky design of the constitution, but rather the near impossibility of amending said constitution.

    To be pedantic for a minute, but the amendment process is part of the design problem.

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  22. reid says:

    @Steven L. Taylor: I think we (mostly) all understand that and agree. But given the circumstances, he’s not doing what most of us think would be the right thing for whatever reason.

    Like most large, fundamental issues with our government, I can’t imagine the bigger problem ever getting solved. Sad.

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  23. Raoul says:

    I wish Breyer realized that RGB entire legacy was erased with her predictable death and her deathbed wish of having the next president select her successor was frankly delusional. She was was an octogenarian with one of the deadliest forms of cancer and she refused to retire. The arrogance of these jurists is embarrassing.

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  24. Michael Cain says:

    @Modulo Myself:

    Also, the Democrats could have expanded by the court on day one of the Biden administration…

    Well, you’re assuming that Pelosi has 218 people with a (D) behind their name that will vote to expand the court, and that Schumer has 50 plus VP Harris. I will concede that if there were a well-vetted plan to rework the upper levels of the federal courts — create more Circuit courts, say, then expand the Supreme Court in anticipation of an increased workload — there might be. On the premise of quickly adding six Biden-nominated justices? We have to work within the confines of the Representatives and Senators we could get elected, not the set that we might wish we could have elected.

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  25. Scott F. says:

    @Steven L. Taylor:
    To be sure, amendments were designed to be difficult.

    But there have been more than a dozen amendments since the Bill of Rights, so the design intent was for amendments to be possible. Yet, no amendments have passed in 40 years. If “solution” is the ultimate end goal, all paths lead through constitutional amendment.

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  26. Michael Cain says:

    @Steven L. Taylor:

    To be pedantic for a minute, but the amendment process is part of the design problem.

    Which is the primary reason I personally believe the authors of the Constitution expected a convention to be called within 75 years or so and something new done, based on what we had collectively learned.

    Instead we got a Supreme Court that believed the Constitution was to some extent a living document to be interpreted (one of my favorites the decision that decided that yes, an authorization for Post Offices and Post Roads covered collecting the mail and moving it from city to city on ocean-going ships). Slave owners were much more dedicated to that cause than might have been expected. So here we are.

    I believe that we are as likely to get 38 states to agree on a break-up provision than to get an amendment that makes any other substantial change to the fundamental structures. (Yes, I know that puts me out on the lunatic fringe on the subject.)

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  27. Kathy says:

    Someone should remind Justice Breyer that, for the moment, what’s good for the Democratic Party is good for the country.

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  28. @Scott F.: There have been 17 since the Bill of Rights. If you really think about that, that’s not many. Worse, the 27th (that last one ratified) was one of Madison’s original 12 proposed. So in some ways on 16. Of those 16 one was prohibition and the other the repeal thereof (and that one was weirdly specific). Really, we have had 14 amendments that could be linked to trying to either expand rights or tweak the machinery of government in roughly two and a quarter centuries.

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  29. Michael Cain says:

    @Scott F.:

    But there have been more than a dozen amendments since the Bill of Rights, so the design intent was for amendments to be possible.

    But aside from the Civil War amendments, and possibly direct election of Senators (done when we were within a handful of states of calling a convention), all we’ve done is tinker around the edges. There’s little evidence that the amendment process was intended to allow structural changes except when there was an existential sort of crisis.

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  30. @Barry:

    We keep excusing people for quite deliberately performing extremely evil acts because they can get away with them, when they are in the elites

    FWIW, my personal preference would be for him to resign today.

    However, I don’t think anything is served by calling his unwillingness to do so “extremely evil.”

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  31. wr says:

    @Steven L. Taylor: “However, I don’t think anything is served by calling his unwillingness to do so “extremely evil.””

    I’m with you on that. But I will go for “arrogant,” “narcissistic,” and “pathetic.”

    He’s really enjoying his new position as the chief liberal, so the country and everything he’s ever worked for can go screw. I’m sure all the women dying from illegal abortions will understand how important it was that he thoroughly enjoy his sunset years.

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  32. Scott F. says:

    @Steven L. Taylor:
    I grant all the difficulties of amending the Constitution and the rarity of the practice. I’m not trying to say the amendment process used to work and now it doesn’t. I could even see my way to the point @Michael Cain makes regarding a possible intent by the Founders for amendments only for existential scenarios.

    But, since the real problem is one of constitutional design, then the real solution has to be one of constitutional re-design. That means amendment or blowing the whole thing up and starting over. That means examining the barriers to constitutional change and working to overcome those.

    Otherwise, all we are left with is getting pissed at Justice Breyer, because that at least could plausibly lead to an outcome. Otherwise, pointing at the real problem is merely a way to let Breyer and other leaders off the hook for their action (or inaction) in the face of the dysfunctional non-representative state of governance we are stuck in. A current state I would argue is an existential sort of crisis.

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  33. DrDaveT says:

    At a minimum, he cannot be ignorant of the extreme politics associated with the nomination process and he has witnessed, along with the rest of us, the actions of McConnell in regards to the Scalia and RBG vacancies, as well as the obviously strategic resignation of his colleague Anthony Kennedy.

    Sure he can. He’s 82. My parents are 81 and 80, and their grasp of reality is nothing like what it used to be. My in-laws are 86 and 92, and are frankly totally divorced from reality. I am sick and tired of pretending that getting really old does not necessarily involve mental debility. Even the least-impaired 80 year old is still impaired by any objective standard.

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  34. Just nutha ignint cracker says:

    @Michael Reynolds:

    When the elites fail to behave it sends a clear signal that virtue is for suckers and it’s every person for themselves. The very opposite of leadership.

    Very true. And been that way for most of my adult life. (And it is “every person for themselves” and has been for a long time. Some of my high school teachers offered that advice to me, in fact.)

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