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Judiciary, U.S. Supreme Court

By Pushing Stephen Breyer to Retire, Abortion Activists are Betting to Lose in the Supreme Court

NBC News broke the story of Supreme Court Justice Stephen Breyer’s impending retirement on January 26th in the usual way—via Twitter. A longtime bulwark of liberal judicial activism since Bill Clinton put him on the Court in 1994, Breyer confirmed his plans with a formal announcement the following day.  Although rumors of Breyer’s retirement had circulated since last summer, the process was abrupt and painfully awkward. As Kimberly Strassel described in the Wall Street Journal, “The news leaks force-marched Justice Breyer into penning an official retirement letter the next day,” depriving him of the usual courtesy of deference to a departing Justice’s own timeline. 

Events suggest Breyer was rudely defenestrated by those on the Progressive Left who should have been his allies. At the vanguard of the Progressive anti-Breyer crusade was the group Demand Justice, which began the drumbeat last spring by circling the Supreme Court with a billboard truck bearing the message, “Breyer, retire.” The group’s contrarian call for the Court’s liberal leader to step down in good health was spooked by its concern over the Democrats’ poor prospects for maintaining its Senate majority in the 2022 elections, Demand Justice explained. “While hopefully we have this majority for until the end of 2022, really this majority could go at any moment, given sort of the potential health or something else that might happen,” Christopher Kang, the group’s chief counsel, told National Public Radio.

Now the Biden Administration has what it wanted—its own Supreme Court nominee, D.C. Circuit Court of Appeals judge Ketanji Brown Jackson, whose judicial record is exceedingly sparse, but who meets Biden’s principal qualifications as an African-American woman with a strong scholarly record and a commitment to Roe v. Wade.

The point isn’t that Jackson would be unqualified to sit on the U.S. Supreme Court. The point is that it’s doubtful she—or anyone else who was on Biden’s shortlist—has Breyer’s leadership ability. Consider the ground the Left has lost on the Court in the past few years. A dominating and intellectually gifted centrist, Anthony Kennedy, has been replaced by a much more conservative protégé’, Brett Kavanaugh. The Court’s progressive intellectual leader and fiercest abortion defender, Ruth Bader Ginsburg, has been replaced by a likewise gifted conservative leader and abortion opponent, Amy Coney Barrett. On the other hand, conservatives have fared better, with Justice Antonin Scalia replaced by a close analog in judicial philosophy, Neil Gorsuch. Thus, in the ideological tug of war that is the Supreme Court, the Left will have lost both its anchors within a year, and the rest of its contingent appears to be flailing. Justice Sonia Sotomayor is not a natural leader or consensus builder, to say the least. Justice Elena Kagan has skills in that realm (she was, after all, dean of one of the most politically sensitive law schools in America), but lately she seems to be more interested in rapprochement with Chief Justice John Roberts’ positions than writing strong dissents. 

When it comes to the Supreme Court, leadership is undervalued. Shortly after Roberts ascended to the High Court in the 2005 term, he brokered—mirabile dictu!—the first unanimous abortion decision anyone could remember in Ayotte v. Planned Parenthood. The next term, Roberts led a narrow majority to functionally reverse a badly reasoned abortion precedent (Stenberg v. Carhart) that had been penned by Justice Breyer. The Chief Justice’s majority in Gonzales v. Carhart upheld Congress’s Partial Birth Abortion Act and declared the Supreme Court’s “abortion post hoc nullification machine” closed for business. Roberts’ keen instinct for making gains when and as opportunity permitted has permanently reset the Court’s posture toward pro-life policy.

Leadership is what Justice Breyer gave the Left, especially on the abortion issue. Breyer is the Justice who took advantage of the loss of Justice Antonin Scalia to pen the Court’s awful decision in Whole Woman’s Health v. Hellerstedt, striking down a substantial portion of Texas’s abortion laws and purporting to license every federal judge to balance the burdens imposed by an abortion law against its benefits—a test the Court has rejected in most constitutional contexts. Breyer doubled down three years later in June Medical Services v. Russo, insisting for a mere plurality of four members of the Court that his balancing test would be the Court’s standard going forward.

The rush to defenestrate Breyer was out of step with Court history, as Justices are holding onto their life-tenured seats longer and longer. Justice Ruth Bader Ginsburg was 87 when she passed away. John Paul Stevens retired at 90. At 83, Breyer is showing no signs of physical or intellectual atrophy. Every Supreme Court advocate steels himself or herself for that moment when Breyer, chin in hand, will fix an acerbic eye on them and spin an entangling hypothetical or  rhetorical snare. Consider the moment in Hellerstedt when Breyer pinned down Texas Solicitor General Scott Keller with the question, “[W]here in the record will I find evidence of women who had complications, who could not get to a hospital…. On what page does it tell me their names, what the complications were, and why that happened?” Flummoxed, Keller could only respond that names and circumstances were “not in the record.” Breyer threw down Keller’s admission in his opinion for the Court;  “[W]hen directly asked at oral argument whether Texas knew of a single instance in which the new requirement would have helped even one woman obtain better treatment, Texas admitted that there was no evidence in the record of such a case.”

Abortion activists didn’t need an untested neophyte on the Court. They needed Stephen Breyer, and now, thank God, they won’t have him. At least on the abortion issue, Demand Justice and the Progressive Left seem to be betting against themselves in their desperation to trade a reliable vote for longevity on the Court. Even if one grants the Left’s operating assumption that Democrats will lose the Senate this fall, making nomination of an extreme activist in Breyer’s mold difficult, the abolition of the filibuster for Supreme Court nominations (also a self-inflicted wound of the Left) means that a qualified and politically sensitive nominee—such as an African-American female judge—would not be voted down peremptorily. And Breyer’s health and acumen give no one cause to believe he could not have anchored the Left side of the Court for seven more years of a Biden administration, assuming once again the norm of a second term held. 

Abortion activists like Demand Justice have been hollering for years that Roe v. Wade is about to be overturned and women relegated to the “dark ages” of A Handmaid’s Tale. Within a few weeks or months, we’ll know whether the current Court has the political will to reverse Roe and send the abortion issue back to the states and to the people. In the meantime, the abortion lobby’s high-decibel protestations that the fight for Roe is a fight to the death are belied by its willingness to banish abortion’s Patton in the thick of a losing battle. Why, then, are Demand Justice and the Progressives betting they will lose the Senate and a second Biden term to boot? Why are they doubling down if they think they’re holding a losing hand? When it comes to abortion, the loser’s mentality of the casino addict has become reflexive. Let’s hope it stays that way.