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The Supreme Court’s decision to consider a case that could further curb or even overturn its 48-year approval of a woman’s right to an abortion shows the continuing impact of Donald Trump’s controversial presidency.
And it underscores why many Democrats hope the court’s oldest justice, Stephen Breyer, steps down sooner rather than later to ensure President Joe Biden can choose his successor.
Over the past six decades, Democrats and Republicans have held the White House an equal number of years. But propitious timing has enabled GOP presidents to name twice as many Supreme Court justices, including all three chief justices, giving the court a strong conservative tilt.
This mattered less when both parties contained broad ideological coalitions and a potential justice’s prior views underwent less scrutiny. That resulted sometimes in Democrats naming conservatives, like President John F. Kennedy’s choice of Byron White. Or Republicans picking liberals, from President Dwight Eisenhower’s choices of Earl Warren and William Brennan to George H. W. Bush’s pick of David Souter.
More recently, that has become far less likely. Republican presidents chose all current six conservative justices, and Democrats all three liberals. The issue crystallized last year when longtime liberal stalwart Justice Ruth Bader Ginsburg died and was replaced by the far more conservative Amy Coney Barrett.
That expanded the court’s conservative majority to 6-3, which likely explains last week’s decision to hear a Mississippi case that directly challenges the court’s 1973 ruling legalizing most abortions.
Meanwhile, some liberal groups have sought to exert public pressure on the 82-year-old Breyer, the court’s longest serving Democratic appointee, to step aside while Biden enjoys a Senate majority likely to ratify his choice of a successor. Breyer, by all reports, is resisting.
He has named law clerks for next year’s court session, rejecting a way retiring justices sometimes signal their impending departure. And he said he isn’t concerned about ensuring his replacement by a similarly minded Democratic appointee.
In a recent lecture at Harvard Law School, Breyer said it is important for justices to shed any trace of partisanship, noting that once they take their oath, “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
But while it is easy to understand why someone who feels in full command of his intellectual capacities would resist retirement, Breyer’s position ignores the political realities. By remaining, he stands to increase the possibility of the court moving even further to the right.
In recent years, the court has weakened the Voting Rights Act of 1965, opening the way for Republican governors and legislatures to enact state voting law changes that would previously have undergone Justice Department review. Now, the court poses potential threats to 50 years of legalized abortion rights – repeatedly upheld though somewhat narrowed – and a decade of the Affordable Care Act and legalized same sex marriage.
If Breyer stays, recent history suggests there is no guarantee a Biden selection would be confirmed if Democrats lose their narrow Senate majority next year, even though he’ll retain the power to nominate justices through at least Jan. 20, 2025.
Biden has said he plans to name the court’s first Black woman justice. A prime candidate is Judge Ketanji Brown Jackson, whose nomination to the Court of Appeals gained Judiciary Committee approval, but with opposition from all but two Republicans.
Fortuitous timing is mainly, but not totally, responsible for the court’s conservative domination, illustrated by the appointment records of the three most recent one-term presidents, Jimmy Carter, the elder Bush, and Trump.
There were no vacancies during Carter’s presidency. Bush had two, choosing Clarence Thomas, who became a predictably conservative stalwart, and Souter, an unexpectedly liberal vote.
The fact that Trump filled three vacancies was not totally due to accidental timing. His first choice, Neil Gorsuch, filled the seat that opened when the Senate’s GOP majority blocked President Barack Obama’s choice of Merrick Garland in his last year in office. The second, Brett Kavanaugh, was reportedly named after GOP-nominated Justice Anthony Kennedy was assured that, if he retired, his former clerk would get serious consideration.
Then, Republican senators, who in 2016 opposed confirming a nominee late in a presidential term, backed Barrett’s nomination after Ginsburg died on the eve of the election in which Trump lost the White House and the GOP lost the Senate.
That angered many Democrats, some of whom favor adding justices to counter the court’s conservative majority. Biden opposes that and has sought to defuse the issue by naming a commission to study the state of the judiciary. In any case, proponents of court expansion lack the congressional support for it.
Democratic frustration is underscored by the fact that conservative justices have controlled the Supreme Court for nearly 50 years, since President Richard Nixon filled two vacancies in 1972. A Hillary Clinton victory in 2016 could have changed that, but Trump’s promise to appoint conservative justices was a factor in his victory that year.
Breyer’s departure while Biden can nominate and confirm a successor would contribute to stemming that tide. In the meantime, the court seems poised to take a step that can only exacerbate the role of the abortion issue in the nation’s already volatile politics.
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