Demand Justice renews its push to oust Justice Breyer

(AP Photo/Steven Senne, File)

I thought this effort by progressive to push Justice Breyer to retire was starting to wind down a bit over the past week but yesterday and today it seems to have returned with renewed vigor. First up, a group of 18 legal scholars have written an open letter asking him to retire now. The letter will be published as a full page ad in the NY Times on Friday and was organized by Demand Justice:

A group of 18 scholars on Wednesday signed onto an ad to be published Friday in The New York Times, paid for by the liberal group Demand Justice, calling on the 82-year-old justice to announce plans to step down, giving President Joe Biden the opportunity to nominate a younger liberal justice to the Supreme Court.

“It is time for Justice Stephen Breyer to announce his intent to retire from the Supreme Court. Breyer is a remarkable jurist, but with future control of a closely divided Senate uncertain, it is best for the country that President Biden have the opportunity to nominate a successor without delay,” the statement says.

At the same time, a coalition of 13 progressive groups is placing a full page ad in Politico calling on Breyer to step down. This effort is also being funded by Demand Justice:

Thirteen progressive groups on Wednesday will publicly call on Supreme Court Justice Stephen Breyer to step down to let President Joe Biden confirm his successor while Democrats control the Senate.

“Supreme Court Justice Stephen Breyer should immediately announce his intent to retire from the bench,” reads a forthcoming ad endorsed by national advocacy organizations including Demand Justice, Women’s March, Black Lives Matter and the Sunrise Movement.

In addition, the LA Times published an editorial today arguing that Breyer should retire to “help depoliticize the Supreme Court.”

Breyer was appointed for life, and he has the right to remain on the court as long as he believes he can capably perform his duties. We believe that he may be somewhat in denial about the polarizing forces that have politicized the court since the 1980s, and that unilateral disarmament on the part of Democrats and Democrat-appointed justices won’t work. Nonetheless, Breyer should ask himself if stepping down now, after a long and distinguished career, wouldn’t ease rather than exacerbate a disturbing and unmistakable trend.

The Washington Post’s Ruth Marcus also wrote a piece yesterday making essentially the same arguments as everyone else. All of this pressure is essentially designed for an audience of one. Will it work? CNN published a story today saying probably not:

Nothing Breyer has said publicly suggests the 27-year veteran is ready to leave the work of the court just yet.

He seems in vigorous health, unlike some retirees in recent years or the late Justice Ruth Bader Ginsburg, whose September 2020 death allowed then-President Donald Trump to place a third appointee on the bench. Breyer, who jogs and meditates, has remained visible on the speaking circuit during the Covid pandemic via Zoom.

Breyer also has a special interest in cases the justices are scheduled to hear next session, including on abortion rights and gun control. He has authored crucial, narrowly won abortion rights decisions in recent years.

That doesn’t mean Breyer can’t change his mind but I think it’s pretty clear that, if he does so at this point, it’s only be because the partisan pressure campaign worked. And if it works on him, we can expect the same tactics to be used to pressure other Justices in the future.

It’s hard to imagine Breyer wants partisan capitulation to be his final legacy but saying no to the mob takes a lot of energy even if the counter-arguments are mostly happening in your head. And  to be honest that seems to be a big part of this strategy. Drag the pressure campaign on long enough that you simply wear out Breyer’s willingness to say no to it. It’s an ugly strategy but it just might work.