Justice Breyer Calls the U.S. 'An Experiment'

Supreme Court Justice Stephen Breyer referred to the U.S. as “an experiment” he believes will continue to work for future generations during his official retirement announcement at the White House on Thursday.

After a career trying to keep the U.S. Supreme Court above politics, Justice Stephen Breyer’s retirement underscores just how central the court now is to the U.S. political wars.

Breyer’s White House announcement Thursday was timed perfectly to give President Joe Biden a needed chance to change the national conversation and reinforce the court’s beleaguered liberal wing.

It comes amid a seismic Supreme Court shift driven by a Republican agenda. The court now has a 6-3 conservative majority that could be poised to overturn the constitutional right to abortion, abolish the use of race in university admissions and slash the Environmental Protection Agency’s power to combat climate change.

In books and interviews, Breyer spent much of the past quarter-century insisting that the justices aren’t simply “junior league politicians.” In a speech last year, he said that “it is wrong to think of the court as another political institution.”

But as with many of his predecessors, Breyer’s aversion to politics didn’t keep him from taking advantage of a window of Democratic control of the White House and Senate. That control means Biden, who has vowed to appoint the court’s first Black woman, can get his nominee confirmed without any Republican support. Democrats hold the 50-50 Senate because of Vice President Kamala Harris’ tie-breaking vote.

Breyer “sees that this is a super-majority conservative court that is very interested in aggressively moving the law in conservative directions,” said Leah Litman, a constitutional law professor at the University of Michigan. “He also sees that there is a chance that President Biden might not be able to confirm a justice to the Supreme Court if Republicans win control of the Senate in the midterms.”

Democratic Roots

The 83-year-old Breyer has been a pragmatist and consensus-builder who generally votes with the court’s liberals in ideologically divisive cases. A former counsel to Democratic Senator Ted Kennedy of Massachusetts, he was appointed to the court in 1994 by Democratic President Bill Clinton.

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