That Constitutional Court Justice Stephen Breyer is stepping down from his post on the US Supreme Court is unfortunate in many ways. Above all, it is a capitulation to reality. Breyer is acknowledging what is obvious but has always publicly denied: the United States Supreme Court is ideological and an instrument of partisan politics.
Breyer was appointed to the court in 1994 by Democratic President Bill Clinton. Since then he has never tired of emphasizing that judges, once appointed, leave their political convictions behind. That was not true even in 1994, and today it is almost grotesque to claim that the Supreme Court is above the lowlands of day-to-day politics.
Now Breyer is not naive. In his almost 30 years on the Supreme Court, he always faced a majority of colleagues who had been appointed by Republican presidents. He knows all too well what it means to be in the minority, and too often has seen first-hand how arguments have been twisted to fit the ideology at hand. Both sides are guilty of this, by the way. The decisions of the court are therefore not always predictable, but more and more often.
Time is pressing, because the majority in the Senate will probably be gone by autumn
The fact that Breyer nevertheless repeatedly emphasized the independence of the court, most recently in a book published last autumn, is to his credit. The idea behind it was that at least he himself would fill his claim with life. He wanted to lead by example and at the same time force reality through word and deed to conform to his point of view, to bow to it.
For this reason, Breyer had long refused to resign early. why? The judges are appointed for life, and in his publicly propagated worldview it doesn’t matter who was appointed by whom.
The reality, however, is this: The Republicans will probably retake the Senate in the fall. Without a majority in the Senate, however, in the climate of division in Washington, it is not possible for the President to send anyone to the Constitutional Court. Republicans brutally demonstrated that during the last year of Barack Obama’s tenure when they refused to even hear his candidate for a vacancy.
The President is squinting at the votes of African American voters
Breyer may continue to speak of the court’s political independence, but his latest major act reveals that he knows better. He is 83 years old and the Democrats will probably not be able to nominate anyone for a long time. With his resignation, Breyer gives the president the chance to fulfill a promise: to bring a black woman to court for the first time. As cynical as it sounds, that fits Biden well into the concept, especially in terms of election tactics: he needs the Afro-American votes for the midterms in the fall.
For Stephen Breyer, at the end of his long career, it seems that reality has not bent to his will. Even more: that in the final analysis it stands above the law.