by Mitch Kokai
Senior Political Analyst, John Locke Foundation
The recent left-wing push for Justice Stephen Breyer to retire in favor of a younger liberal justice is likely to make the Supreme Court more conservative, at least on the margins.
Advocacy groups and liberal law professors are practically muscling the 82-year-old Clinton appointee off the bench, with memories of the late Ruth Bader Ginsburg fresh in mind. The liberal judicial group Demand Justice mounted a billboard that read, “Breyer, retire. It’s time for a Black woman Supreme Court justice,” onto a truck that circled the Supreme Court in April.
With a right-leaning majority in place for the foreseeable future, it’s easy to see why liberals want a young progressive stalwart on the bench. But Breyer’s unique judicial approach makes him an effective emissary to his conservative colleagues, helping the left salvage victory from the brink of defeat in cases big and small. It’s unclear whether his eventual successor will be as effective at building consensus or turning broad questions into narrow ones.
Breyer is not an activist fomenting social revolution through the courts. He is a judicial pragmatist who tries to harmonize the law with reasonable real-world outcomes. He will consider what Congress was up to in a given piece of legislation and how competing interpretations will play out on the ground and then craft a decision that aligns Congress’s purpose and sensible results for all relevant stakeholders. This technocratic mode of judging sometimes presents something appealing for a conservative justice.
Liberals have time and again benefited from this approach. …
… Breyer has likewise been a force for practicality and moderation in the fractious religious display cases. He wrote an influential solo opinion in a 1995 case, Van Orden v. Perry, in which the Court turned back a constitutional challenge to a granite statue of the Ten Commandments on the grounds of the Texas statehouse.