The stakes of Justice Stephen Breyer’s departure from the Supreme Court

Justice Merrick Garland, appointed attorney general (or Minister of Justice) by President Biden, vividly remembers the events of 2016. His nomination by President Obama to replace the most famous figure of the current “originalist”, Antonin Scalia, had caused a bronca in the Republican camp: the leader of the majority in the Senate of the time, Mitch McConnell, had his voice of stentor ruled out any possibility of confirmation, considering that the election year requires, this choice would be that of the next president.

This sudden burst of Republican courtesy disappeared four years later. The death of Judge Ruth Bader Ginsburg, on the eve of the presidential election, did not prevent the Grand Old Party from launching briskly into a nomination and confirmation process in order to consolidate the Conservative majority in a Court where judges sit for life, in «good behaviour». A constitutional provision which, in the words of Founding Father Alexander Hamilton in the Federalist Papers, n°78, the advantage of guaranteeing the independence of the federal judiciary and preventing any form of reprisals from the representative body.

While President Biden recently announced the creation of a commission responsible for working on a reform project Supreme Court, he remained particularly evasive during his campaign on his willingness to proceed with a «Court packing» to counterbalance the weight of the judges of the conservative camp. The risk of a Republican Senate after the midterms 2022 thus places a heavy responsibility on Judge Breyer’s shoulders.

His resignation would allow the Democrats to replace him and perpetuate the progressive contingent, however small it may be. Erwin Chemerinsky, a constitutionalist well known to law students, has thus invited Judge Breyer to step down, as he had done for Ruth Bader Ginsburg in a tribune in 2014.

Judges of the Supreme Court of the United States in 2018, including Stephen Breyer (bottom left) and Ruth Bader Ginsburg (bottom, second from right). | Mandel Ngan / AFP

An African-American judge?

Joe Biden, so far, has not been particularly clear or particularly talkative about his vision for the country’s supreme court. However, he expressed his desire to appoint an African-American judge, which would be a first. A thoughtful choice that would also be sustainable since the one who is the oldest president in office in the history of the United States seems to put a high point to retain for his shortlist only women aged 50 and over. less.

For now, two names keep coming up: Leondra Kruger and Ketanji Brown Jackson. The first, 44, was Deputy General Counsel in 2011 before joining the California Supreme Court in January 2015. “Pivotal judge”, she is considered a moderate, and therefore able to convince the Democratic right wing of the Senate.

Leondra Kruger, en 2013. | Lonnie Tague / US Department of Justice via Wikimedia Commons

The second, a young fifty-something, was assistant to Judge Breyer between 1999 and 2000. Currently a judge in the Federal District Court for the District of Columbia, Judge Jackson’s name was on President Obama’s list to replace the judge. Scalia in 2016.

For Brennan as for Breyer, the Constitution is a living text, an evolving entity.

Joe Biden could nevertheless prefer to name this rather progressive figure in post vacated by Merrick Garland in the Federal Court of Appeal for the District of Columbia Circuit.

Ketanji Brown Jackson, en 2020. | Rose Lincoln / Harvard University via Wikimedia Commons

Beyond the highly symbolic act directed in favor of the African-American population, the choice of President Biden is dictated by the question of the legal interpretation of the Constitution.

Faced with six judges favorable to textualist and originalist theories (representing respectively the literal interpretation of the Constitution and the search for the original intention of the Founding Fathers), the president will surely be keen to choose a judge who upholds the “organist” approach (or “Living Constitution”, living constitution), following on from Breyer J.

The confrontation of theories of legal interpretation

The heterogeneity of the Supreme Court is indeed measured more in terms of the interpretative approach of the judges than the political color of the president who appointed them. Where Judge Antonin Scalia’s decision-making process can be summed up in two words (text and tradition), Judge Breyer’s approach is much closer to the judge’s thinking. William Brennan, for who “The Constitution is not a static document whose meaning of every detail is fixed forever by the life experience of its authors”.

For Brennan, as for Breyer, the Constitution is a living text, an evolving entity, the full meaning of which cannot be established either by doctrinal precedent or by proof of an initial intention.

Justice Scalia’s interpretive approach is the exact opposite: the judge appointed by President Reagan in 1986 argues that “Primacy must be given to the text, structure and history of the interpreted document and the judge’s job is to apply the plain textual language of the Constitution or the law … If the text is ambiguous, giving place of several contradictory interpretations, Scalia turns to the specific legal tradition that flows from this text “What it meant for the society that adopted it” ”, Professor Melvin I. Urofsky tells us in his encyclopedia biography of the Supreme Court.

The resignation of Judge Stephen Breyer would allow the Democrats to retain three seats.

The Court produces standards to which it adheres (this is the rule of precedent, or stare decisis), although he sometimes overthrows them: as Professor Stephen Wermiel points out, the stare decisis is entitled to a certain respect from the judges of the Court, as it is necessary for the stability of the right to the credibility of the Court, but it is not always binding. One of the best known examples being stopping Brown v. Board of Education of Topeka (1954), which paved the way for school desegregation by reversing the decision Plessy v. Ferguson (1896).

Understanding a decision thus requires distinguishing between the various influencing factors and in particular that of the ideological preferences of judges in the development of law: this is what Harold Spaeth and Jeffrey Segal show in a work devoted to the “attitudinal model”. The composition of the Supreme Court can thus lead, at intervals of ten years or so, to seemingly contradictory decisions: Lemon v. Kurtzman (1971) and Marsh v. Chambers (1983) both relate to«Establishment Clause» from 1is amendment, relating to the separation of Church and State.

The Court relied on a purely textualist approach (relying however on the doctrine of incorporation) for the first, declaring unconstitutional two laws of Pennsylvania and Rhode Island. Twelve years later, she favored an approach that was both originalist and traditionalist to justify the constitutionality of a religious ceremony organized at the beginning of each legislature in Nebraska and financed by public funds.

What future for the Court?

The resignation of Judge Stephen Breyer would allow the Democrats to retain three seats: a meager gain that should however be sustained in the face of six conservative seats which are fueling fears about the possible overturning of certain major decisions (landmark cases) such as the famous decision Roe v. Wade of 1973, affirming a constitutional right to abortion under the XIVe amendment.

Without major reform, the sustainability of the seat currently occupied by Judge Breyer is an imperative necessity for the Democratic camp.

A fear that is all the more relevant today since America is waiting for the Court to rule on Dobbs v. Jackson Women’s Health Organization, a case that raises the question of the constitutionality of Senate Bill 2116 (Mississippi) who prohibits recourse to abortion after detection of a heartbeat unless there is a pressing medical need.

Without major reform, the sustainability of the seat currently occupied by Judge Breyer is an imperative necessity for the Democratic camp. If, recently, the Court has been able to issue opinions that are rather surprising given its conservative leanings (notably last year with the judgment Bostock v. Clayton County, protecting gays and trans people from discrimination in employment), it also has its share of ambivalent decisions: the case June Medical Services LLC v. Russo, in line with Planned Parenthood v. Casey (1992), does not call into question the judgment Roe v. Wade but continues to weaken it.

So many signals that could push Judge Breyer to step down to prevent his seat, like that of Ruth Bader Ginsburg, from tilting to the Conservatives’ side.

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