In terms of how they will rule on the bench, it may not matter much whom Biden nominates. Conventional, institutionalist liberals tend to be every bit as results-oriented and lockstep-loyal on the bench as hair-on-fire progressives. Conservatives get nervous about every Republican nominee; Democrats have not sent a genuinely heterodox justice to the Court since Byron White was appointed by John F. Kennedy.

Breyer’s own career illustrates the limits of what a “moderate” liberal looks like. He was occasionally sensible in business cases and matters of low political salience, and to his credit, he voted to strike down the most coercive aspects of Obamacare’s Medicaid expansion. But that was about it. Like Ruth Bader Ginsburg, appointed the previous year by Bill Clinton, he was sold as a moderate almost entirely on the grounds that he would not impose a knee-jerk objection to the death penalty. But on the Court, Breyer became a single-minded crusader to use every available argument to hobble capital punishment, no matter how disconnected those arguments were from the text and history of the Constitution. He was a reliable and invariable vote for abortion, same-sex marriage, and other liberal and progressive social causes. In recent years, he became progressively more shrill on matters relating to the Covid pandemic.

So, let us have another national argument about whether the Supreme Court should follow the written Constitution or not. There is no reason to shy away from the fight.