For more than 20 years, Justice Stephen Breyer has authored the Supreme Court’s decisions endorsing abortion rights. With Monday’s news that the court will hear a case that could gut Roe v. Wade next session, a new question has emerged: Will a desire to influence the outcome affect the 82-year-old justice’s decision on whether to retire this summer?
Monday’s action casts in stark relief the dilemma of retirement timing and the consequences of the late liberal Justice Ruth Bader Ginsburg’s decision to remain on the bench through her 80s.
The court’s announcement that it would revisit decades-old precedent on reproductive rights likely occurred only because of the presence of her conservative successor, Justice Amy Coney Barrett. The high court had rejected appeals such as Mississippi’s in the past and lower courts were consistently ruling against bans on abortion before a fetus is viable, that is, can live outside the womb.
The Ginsburg effect cannot help but be entangled with the choice facing Breyer. And the abortion-rights dilemma adds to the many elements that could steer his timing. For any justice, the decision typically involves a nuanced consideration of personal factors, institutional concerns and political realities.
And those can often be in conflict, as has been brought home for Democrats with Ginsburg’s situation. She died last September at age 87 just weeks before the presidential election and Donald Trump’s defeat. She had wanted to outlive his presidency and reportedly made a deathbed request that the next president appoint her successor.
But Ginsburg had also spurned the calls of fellow liberals to retire when President Barack Obama was in office and the Senate in Democratic hands.
“At some point I will get over Ruth Bader Ginsburg’s failure to retire. Today is not that day,” Harvard Kennedy School Professor Maya Sen wrote on Twitter after the court said it would take the momentous abortion controversy.
Hers was just one of the more pointed laments on social media Monday regarding the Ginsburg-to-Barrett succession.
Breyer has likely heard that drumbeat. And he knows that important cases will continue to reach the court, no matter which nine individuals sit there. At some point, realities related to personal health or even Senate politics intrude on individual interests.
Ginsburg spoke openly about defying the political pressure and continuing to contribute to the law in America. She also appreciated the attention that grew with her “Notorious RBG” status.
That moniker and meme began in public admiration of a dissenting opinion she wrote as the majority rolled back the 1965 Voting Rights Act in 2013. It was around that time that liberals began publicly urging her to retire while both the White House and Senate were in Democratic hands. Obama invited her to lunch that year.
Ginsburg resisted overt and subtle overtures. In 2014, she responded to a question I asked about liberal pressure with a rhetorical question of her own: “So tell me who the President could have nominated this spring that you would rather see on the court than me?”
In 2016, she expected Secretary of State Hillary Clinton to win the November election and that she would be able to retire in upcoming years. Trump’s surprising victory ended that plan, although her health did nearly hold out through his four-year term. In her final days of battling cancer, Ginsburg said, according to an account her granddaughter, a lawyer, provided to NPR: “My most fervent wish is that I will not be replaced until a new president is installed.”
Many on the left have cited the Ginsburg situation as they publicly urge Breyer to retire, to guarantee that Democratic President Joe Biden can appoint a younger liberal while the Senate is in Democratic hands, by a single vote.
Breyer, a former Senate Judiciary Committee staffer, has remained wise to the ways of the Senate and he knows the advantages of a Democratic majority to Biden. He also would be aware that, barring the illness or death of a crucial Democratic senator, that majority should hold until the 2022 elections.
Such dire possibilities rattle advocates on the left, who say Breyer should retire this year rather than next. Breyer has declined to respond to questions about his retirement desires or the pressure, which included a mobile billboard truck circling Capitol Hill earlier this spring and calling on Breyer to step down, sponsored by Demand Justice, a liberal group.
Breyer, a former law professor, is known for trying to sidestep friction and, among the nine, trying to build consensus. In an April Harvard lecture, he asserted that the justices were not as politically motivated or divided as they appear. The bench is now split between six Republican-appointed conservatives and three Democratic-appointed liberals.
Yet the liberalism of Breyer, a 1994 appointee of President Bill Clinton, has more and more left him to dissent on the increasingly Republican-dominated conservative court.
Abortion rights could offer another instance. Once in the majority, Breyer’s robust view of reproductive rights has lost support. The high court’s abortion precedents could fully disappear with action next year on the Mississippi law that bans abortions at 15 weeks, more than a month before viability.
In a 2000 Nebraska case that marked the start of Breyer’s series backing abortion rights, he revealed his effort to balance competing interests: “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; … Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity … leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”
As he acknowledged those differences and worked across the ideological divide, Breyer was able to keep a majority of five justices together to strike down state laws that restricted women’s access to abortion. But the retirement of former ally Justice Anthony Kennedy (succeeded by Brett Kavanaugh), as well as the death of women’s rights beacon Ginsburg, has made this a whole new court on abortion rights.
As Breyer balances his own personal timing for retirement and considers his influence on cases, this may be one area of the law he will count as lost.