Breyer Finally Retires

Ryan Heshmati

April 1, 2022

Since the bitterly partisan appointment of Justices Kavanaugh, there has been quite a bit of buzz over the end of Breyer’s service to the Supreme Court. This seemed to be amplified after Justice Ginsberg passed away and was speedily replaced by Justice Barrett. Republicans have been playing the long game in the judicial system. Their strategy has been as simple and effective as taking every opportunity to stack the courts with originalist interpreters of the Constitution that align with their policy objectives. Now, with a blue executive branch, along with a Democratically-controlled Senate and House, the Democrats are in charge. 

After Breyer’s announcement that he intended to retire after the completion of this term, Biden did not wait long before putting wheels in motion. In that time, various names like moderate J. Michelle Childs and the more liberal Kentanji Jackson were thrown around as top contenders. After all, Breyer’s retirement offered the Democrats a long overdue opportunity to make their mark on the Court. When Biden finally came out and announced his nomination of Judge Kentanji Jackson, a few conservative politicians like Lindsey Graham made some noise, but overall the reaction was mild compared to the last few nomination battles.

Jackson, in some ways, was a surprising nominee. Throughout Biden’s campaign, he made a point of not being an Ivy leaguer, making her, as someone who graduated from Harvard Law in 1996, an unlikely pick. If confirmed, not only would she be the first African American woman on the Supreme Court, but she would also be the first former public defender to hold a seat. With regards to her judicial philosophy, she has often ruled in favor of labor unions and she limited the scope of executive privilege in a case involving the Trump administration. In her opinion, she wrote, “presidents are not kings [...] they do not have subjects,” however a lot remains to be seen about how she will rule on many hot button issues.

At this point, Republicans no longer need be concerned with controlling the Court. The Roberts Court consists of a 6 - 3 originalist (conservative) majority. The 3 nominations of younger justices by the Trump administration cemented originalist domination of the Court for a long time to come. Regardless of how liberal Justice Jackson will prove to be, it will be inconsequential to the current supreme court balance. With Justices Sotomayor and Kagan being the only ones likely to concur, Jackson’s presence would amount to nothing more than the authoring of some dissenting opinions. As a result, the chances of a battle for this seat are low, but it still remains a possibility. In the minds of Republicans, they already won the fight to control the judiciary. Regardless of whether or not Jackson is confirmed, conservatives will still dominate in the federal court system, which has already had major effects on healthcare, challenges to abortion legislation, and discrimination laws.