His quest for balance and pragmatism sometimes seemed out of place in today’s fractured and tormented America. But isn’t it to his credit? At 83, Stephen Breyer, one of the nine judges of the Supreme Court, is about to formalize his retirement at the end of the current session at the end of June. The news made the “one” of the media on Wednesday January 26, as this decision offers a precious opportunity for Joe Biden to preserve the liberal wing within the institution, dominated by the conservatives – six against three.
Appointed by Bill Clinton in 1994, Stephen Breyer “embodies the best qualities and highest ideals of American justice: knowledge, wisdom, fairness, humility, restraint”, listed Democratic Sen. Chuck Schumer (New York), Majority Leader, who promised a quick confirmation process for the future White House nominee. The tiny margin available to the Democrats in the Senate (50-50, plus the decisive vote of the vice-president, Kamala Harris) heightens the risk of new tussles.
Since the beginning of the Biden presidency, friendly pressure was exerted on the judge, through the media. It consisted of encouraging Stephen Breyer to step down, due to his age, to give Joe Biden the opportunity to promote a younger liberal judge in his place, alongside Sonia Sotomayor, 67, and Elena Kagan, 61 year. The prospect of a Democratic rout in the midterm elections in November would close the door for the president.
However, one of the most important legacies of the Trump presidency is the appointment of three new conservative judges to the Supreme Court: Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett. The latter had replaced the icon of the liberal camp, Ruth Bader Ginsburg, causing a shift in the internal balance. The death of “RBG” in 2020, at the age of 87, had left a bitter taste on the left, some regretting that the magistrate had not left office under the Obama presidency.
Dashed hopes of consensus
Since his disappearance, Judge Breyer had become the eldest of the liberal wing. His hopes for consensus and constructive work with his conservative colleagues have fizzled, on subjects such as immigration, Covid-19 or abortion. A broad offensive in many states to overturn the landmark Roe v. Wade, legalizing abortion, thus seems relayed by the six majority magistrates.
However, Judge Breyer rejects the idea of a politicization of the Supreme Court, of a legal reading decided according to partisan lines. Defender of collegiality and deliberation, the magistrate held a position that was both noble and somewhat isolated. In a speech delivered to Harvard Law School in April 2021, Stephen Breyer deployed his vast culture, citing Cicero and Tocqueville, Shakespeare and Camus. This fine French-speaking person had centered his intervention on a warning against the reforming desires of part of the democratic apparatus, which plans to increase the number of judges sitting on the Court. Stephen Breyer had reassembled the story to underline how much the notion of trust in institutions should be cherished. “ To express it in an abstract way, the power of the Court, like that of any tribunal, must rest on the will of the public to respect its decisions, even those with which it finds itself in disagreement and even if it considers that these decisions constitute a serious error., he said.
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