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Stephen Breyer

Ruth Bader Ginsburg made a terrible mistake when she would not resign from the Supreme Court. Justice Stephen Breyer should not repeat that mistake.

When Ginsburg refused requests made on her as early as 2014, she may have felt her future role on the Court was important (it was), that she was critical and necessary to advance her vision of the Constitution (she was), and that she was an important role model for men as well as women (she was).

But she ignored a much larger issue, which was whether the nation would be better or worse for her failure to step down. Amy Coney Barrett succeeded her: Even if Justice Ginsburg was right in 2014, that decision would be wrong today.

Ginsburg and Breyer are not unique in refusing to retire when they should have. Thurgood Marshall would not step down during the last years of the Carter presidency and so we got Clarence Thomas filling the “Black seat”.

We will probably never know how much of their desire was based on vanity and wanting to continue in a role that they saw as so important.

Abortion, the use of the death penalty, racial justice, health care, integration, affirmative action, gay marriage and LGBTQ rights and the entire criminal system that Ginsburg and Breyer cared so deeply about are being severely impacted because they refused to step down.

Too many Democrats, including Breyer, have for too long, refused to concede the pivotal role that politics plays in judicial appointments.

But it is in the area of voting rights where the Supreme Court has been most destructive. From Shelby v. Holder, decided on June 15 2013, and more recently, Brnovich v. DNC, decided eight years later on March 2, 2021, the court’s conservative majority has attacked the way we elect our officials in order to give Republicans disproportionate power. That, of course, in turn, will lead to more Republican control of the courts and legal system.

Breyer’s latest book, The Authority of the Court and the Perils of Politics, attacks those who say that the Supreme court is a political organ. He says that a judge, once appointed, is free to decide a case in the way that he or she believes the law demands and that judges are not bound by ideological constraints. The dissents on the court, Breyer tells us, are the differences in judicial philosophy, and are not political in nature.

Breyer, more conservative than the other liberal judges, is wrong. Marshall, and Ginsburg, along with many conservative judges, disagree with the claim that ideology does not play a major role in the court's decisions.

I represented black voters in 1965 in Mississippi. I have spent much of my life defending in the Supreme Court, as well as trial and appellate courts in more than a dozen states, those on the right, center and left in political cases. To suggest politics did not play a role in our legal system is delusional.

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If Breyer is replaced by a Biden appointee, there will still be six conservatives on the court. If Ginsburg resigned, Obama and Biden would have had the choice to appoint younger justices who could serve 20 or 30 years longer than their predecessors, outliving the older conservatives.

Breyer has served 28 years. Ruth Ginsburg served 27 years. Kennedy resigned after 20 years. Breyer is not being shortchanged if he steps down now.

Republicans of the last 40 years have been playing a cutthroat game when it comes to the court and the legal system. When Anthony Kennedy, appointed in 1987 by President Reagan, was asked to step down in 2018 so a Kavanaugh type could be appointed, he dutifully resigned at the request of his president, Donald Trump.

Ginsburg, Breyer, and Marshall tried to stop the downward spiral of the Warren Court decision by remaining on the court when the majority became conservative and the Chief Justices were Republicans.

But because the stakes today are clearly much higher, Breyer’s refusal is more dangerous.

Over the last 40 years, Republicans built the now very powerful Federalist Society, which has been grooming future Supreme Court justices. Democrats never formed anything comparable to the Federalist Society. Republicans openly admit, recognize, and encourage a politically conservative, ideological dominance on the court. Too many Democrats, including Breyer, have for too long refused to concede the pivotal role that politics plays in judicial appointments.

Sadly, today, it might be too late to reverse the course Republicans have designed for decades.

Republicans blatantly obstructed Merrick Garland’s nomination for the Supreme Court, proposed by President Obama, first for 293 days and then forever. Republicans added a new technique for their court-packing playbook. Donald Trump and his enablers will certainly claim that it is near treason for any Republican to support any Biden Supreme Court nomination. It can even be years but there will never be a better time than right now to make this fight in the early Biden years. Time is critical.

There is no guarantee that the Democrats could get a new nominee appointed. But the alternative is worse – fighting this battle when the Republicans have even more voices in Congress.


The future is more frightful than the past or present. I can now envision ultra conservative appointees dominating the court for the next 30 years. And, of course, if Trump continues control over court appointees, the future for most Americans can be horrific.

Breyer certainly believes the issues he is fighting for are profound and fundamental. Some of his dissents are among the best in legal history. To protect what he has given so much of his life to protect, he must step down now.

Martin Garbus