Invited to react to the news on Tuesday afternoon, Joe Biden recalled that Stephen Breyer had not yet spoken in person. But he obviously gave in: after a year-long suspense, fueled by speculation and increasingly insistent calls to retire, the judge made the decision to give up his place at the end of the current session of the Supreme Court, next June, according to several close sources quoted by the American media. Appointed for life by Bill Clinton in 1994, he will have spent twenty-eight years in this position, to abandon it, no doubt with regret if one believes his most recent declarations, at 83 years old.
Since the early days of Joe Biden’s term in office, more and more professors, prominent American legal figures, elected officials and activists have publicly implored the veteran of the progressive edge of the highest court in the land: it was better to choose a “retirement strategic”, as long as the White House and the Senate – empowered to designate whoever will succeed him – were still held by the Democrats, rather than taking the risk of returning control to the Republicans, whose hold on the Court is already largely acquired.
It has six conservative judges, including three appointed by Donald Trump during his term of office, out of the nine that make up this jurisdiction which guarantees the interpretation of the Constitution, from which derive the functioning of the institutions and the rights, duties or freedoms. that define the life of American society.
radical right turn
However, the window allowing Biden to name someone after Breyer (in this case “an African-American woman”, he had promised during his campaign, a promise that “still holds” the White House said on Wednesday), and above all a majority of senators to confirm the choice of the president, threatens to close next November, following mid-term elections which everything indicates should return control from Congress to Republicans. And Mitch McConnell, leader of the Grand Old Party senators, explicitly stated that he would oppose the confirmation of a nomination carried by Biden, which is not surprising as he was in many respects the l architect of a radical right turn of the Supreme Court. In 2016, he had thus prevented Obama from filling a vacant seat at the very end of his mandate, leaving this privilege to Trump, and four years later allowed the latter to replace the doyen of the Democratic judges Ruth Bader Ginsburg. , who died just weeks before Biden was elected.
So much so that the Court, in its current composition, asserts itself as the most conservative for generations, which, for example, recently led it to deregulate the ceilings on donations to political campaigns, to restrict the scope of the Voting Rights Act of 1965 ( major legislative translation of the fight for the civil rights of black Americans), or not to oppose a law almost completely banishing the possibility of abortion in Texas. “And [Breyer] has to retire, he should do it soon”, had positioned the democratic senator Amy Klobuchar following this decision auguring another, undoubtedly more devastating still, in a few months, on a law of Mississippi likely to make collapse the right to abortion in half the country. “And [le jugement sur la loi texane] don’t yell that, I don’t know what can do it”.
“I don’t intend to die at Court, I don’t think I’ll be here forever,” conceded Stephen Breyer last September, between two cryptic statements in which he hinted that he could retire one day – but not immediately – when he decided. Activists from the group Demand Justice had a few months earlier sent a truck towing a giant billboard around the courthouse in Washington DC, slapped with this message: “Breyer, step aside. The time has come for a black justice on the Supreme Court”. Biden’s campaign promise having been confirmed by the White House spokeswoman on Tuesday, the first predictions point to two African-American judges as favorites – a profile never before represented in the Court: Ketanji Brown-Jackson and Leondra Kruger, both quite young (44 and 51 years old) and endowed with substantial CVs, a priori unlikely to rile up the centrist part of the Democratic Party, while the extremely tenuous majority which the latter enjoys in the Senate does not authorize it to lose any votes during the confirmation process.
Among the reasons that seemed to keep him from giving up his place, Breyer suggested in his last speeches that figured quite high in the pleasure he felt in leading the Democratic wing of the Court since the death in September 2020 of his eldest Ruth Bader Ginsburg , appointed by Clinton a year before him. Old and sick, Ginsburg had also been the target, under Obama, of campaigns urging her to give up her place, while there was still time to have her replaced by someone from her ideological side. “I’m sure Breyer realizes how much the non-retirement of Justice Ginsburg was a blow to the possibility of having even a moderately progressive Supreme Court in the space of our lives.”, said last year to The Hill Dan Kobil, a law professor at Capital University, before ruling that “That describes Breyer well – moderately progressive.”
Contrary to the originalists of the conservative side, riveted to their literal reading of the Constitution, Breyer has always defended that judges should base their decisions not only on the founding texts of American law and case law, but also on the consequences that will their choices in a contemporary context. His legacy to the history of the Court and the great concern for his career, theorized in particular in his first book (For an active democracy, Odile Jacob, 2007), were that of the “active freedom” of citizens in the life of society and the democratic process, which legal action must encourage. This obsession with sharing democracy was claimed throughout his career as the compass that will have guided him in all his decisions – perhaps even until his withdrawal.