The Irish Times view on the US supreme court: where politics is the law

The excessive power of the US’s highest court distorts the country’s democracy

US supreme court Justice Stephen Breyer has announced that he plans to retire. Justice Breyer is expected to stay on until the end of the current term and until a replacement is confirmed. Photograph: Alex Wong/Getty Images

US supreme court Justice Stephen Breyer has announced that he plans to retire. Justice Breyer is expected to stay on until the end of the current term and until a replacement is confirmed. Photograph: Alex Wong/Getty Images

 

Stephen Breyer has always insisted, no matter how much reality suggested otherwise, that politics, whether party or ideology, plays no part in the US supreme court’s work. He devoted a recent book to the theme. But his voting record on the bench suggests at least a strong sympathy with the court’s minority liberal left, all of whom were nominated by Democratic presidents.

Even Breyer had to admit in a recent interview that at the age of 83, and into his 28th year on the court, consideration of retirement – entirely voluntary – had to involve the calculation of who was likely to get to nominate his replacement and how best he could secure his judicial legacy.

Breyer, the oldest member of the shrunken liberal minority on the court, has been under discreet pressure from the White House since Joe Biden took office to step aside. Memories of the 2020 death of liberal Ruth Bader Ginsburg, who, at 87, steadfastly refused to retire, and her replacement with staunch conservative Amy Coney Barrett, haunt the current administration. It has pledged at least to stem the drift to the right by copperfastening the liberal minority even if there is little prospect of one of the majority retiring soon. Breyer is 10 years older than any other member of the court.

Even with another liberal, the reality is that a whole generation of judicial Republicanism looms in a court whose composition is now a central preoccupation in the country’s deeply polarised politics. The narrow Democratic Senate majority provides an important window for Biden. Even conservative chief justice John Roberts is said to have concern for the perceived legitimacy of his institution that a further rightward turn would threaten.

Biden has promised to replace Breyer on the court with a black woman. That would be an important and welcome move. But the larger question highlighted by Breyer’s retirement – about how the court’s vastly excessive power distorts American democracy – should not be lost in the debate over the court’s next member.

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