The Economist January 29th 2022 31
United States
VacancyontheSupremeCourt
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N
ot since2010 has a Democratic presi
dent put a justice on the Supreme
Court. Joe Biden will now have his chance.
On January 26th sources close to Stephen
Breyer, the 83yearold dean of the court’s
liberal bloc, said he will retire at the end of
the court’s current term. In one sense, Mr
Biden’s nomination will change little: a
liberal will replace a liberal. But on the
campaign trail he promised to nominate a
black woman for the first time ever.
Mr Biden will no doubt move quickly.
Democrats appear likely to lose the Senate
in midterm elections later this year. The
last time a Democratic president asked a
Republican Senate to seat a Supreme Court
nominee—when Barack Obama chose
Merrick Garland to replace Antonin Scalia
in 2016—the nomination never even got a
hearing. Mitch McConnell ended filibus
ters for Supreme Court nominations in
2017 when he was the majority leader.
The Democrats’ bare Senate majority
may be just enough to put a new nameplate
on Mr Breyer’s door when the court begins
its next term on October 3rd. That will re
quire some unity from a caucus that has
shown precious little recently.
Senate Democrats have been sniping at
each other for months over the stagnation
of Mr Biden’s agenda. Progressives have
had knives out for two centrist Democrats,
Joe Manchin of West Virginia and Kyrsten
Sinema of Arizona, who refused to abolish
the filibuster to pass votingrights legisla
tion. Chuck Schumer, the majority leader,
has taken flack from all sides for a legisla
tive strategy that has sometimes seemed to
stem more from his fear of losing a primary
later this year than from an effort to actual
ly pass laws.
Now the caucus will need to stick to
gether to confirm Mr Biden’s nominee.
Picking up some Republican support from
centrists such as Susan Collins of Maine
and Lisa Murkowski of Alaska is possible,
but in the current climate the White House
will not want to count on it. Most probably
they will have to butter up Mr Manchin,
whose relationship with the White House
has deteriorated. He is typically guarded
about his intentions but has voted for all of
Mr Biden’s judicial nominees.
Justice Breyer was confirmed, in 1994,
with 87 votes. He has been a stalwart but
pragmatic liberal who believes judges
should look beyond a law’s text to its “pur
poses” and “consequences”. This approach
inspired his majority opinions upholding
abortion rights, delineating the limits of
presidential power and addressing the del
icate matter of religion in the public
square. He also wrote impassioned dis
sents in favour of racial integration of pub
lic schools and against the constitutionali
ty of the death penalty.
He has been prolix in oral arguments.
He has a gentle sense of humour, often ac
knowledging when he was flummoxed and
regularly imploring lawyers for help in
writing decisions. “We are going to get peo
ple so mixed up no matter what we say,” he
fretted during a hearing in 2013. Earlier this
N EW YORK
Justice Stephen Breyer retires after almost 28 years on America’s Supreme Court
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