It’s not an attempt pack the Court (yet, anyway), and it wouldn’t even change the ideological balance of the nine Supreme Court justices, but activists on the Left have officially begun their campaign to shape the direction of SCOTUS in the decades ahead.
POLITICO reports that the progressive activist group Demand Justice is campaigning for 82-year old Justice Stephen Breyer to retire from the Court, allowing Joe Biden to appoint a much younger justice who could conceivably sit on the bench until 2050.
“Justice Breyer’s service on the Court has been remarkable, and history will remember him even more fondly if he ends up playing a critical role in ensuring the appointment of the first Black woman to the Court,” said Brian Fallon, the group’s co-founder and executive director. “Timing his retirement in the coming year would guarantee that opportunity, and it would be wise to do so because the window may prove a narrow one.”
Fallon’s comments are the latest example of Democratic anxiety about the composition of the Supreme Court, where conservatives outnumber liberals six to three. And it illustrates how the left-wing of the party feels immediately emboldened to push Biden now that a Democratic Senate majority seems likely, however narrow.
Just as a quick aside; there is no “left-wing” of the Democrat party. There’s the socialist wing and the progressive wing.
Ultimately though, it’s not about either wing pushing Biden to push Breyer out the door. That’s going to be up to the justice himself. I’m sure Breyer has thought about Ruth Bader Ginsberg’s death and Amy Coney Barrett’s confirmation to the vacant seat in the waning days of the Trump administration, but with Biden set to be inaugurated on January 20th and with Democrats in control of the Senate for at least two years (barring any unexpected retirements), the window of opportunity for a Democrat to replace Breyer is a little wider than Brian Fallon wants supporters to believe.
It’s also worth pointing out the breathtaking audaciousness of telling an 82-year old sitting Supreme Court justice that he should step down now, not because of his rulings or judicial philosophy, but because the Left wants to replace him with a younger black woman. It’s pure identity politics, and I suspect that actually has more to do with Fallon’s call for Breyer to step down than any real strategy to replace older Democrat-appointed justices with newer models. In fact, as my friend Ed Morrissey points out at Hot Air, if Breyer were to step down his replacement would likely have to be at least slightly more centrist than Breyer in order to be confirmed.
Do progressives think that Biden can get another Sonia Sotomayor past the goalie in a 50/50 Senate, especially with Senate Republicans still angry over the treatment given to Brett Kavanaugh and to a lesser extent Amy Coney Barrett? Maaaybe, but I doubt Biden would be convinced of that. He’d be more likely to appoint a more center-liberal jurist, especially in the first slot that opens up after his unity talk.
Ed adds that perhaps progressives should just leave well enough alone. If this were truly about the Supreme Court, I’d agree, but I suspect Fallon’s push is based on virtue signaling and fundraising more than anything else. Besides, replacing one lefty justice with one that’s slightly more centrist could end up being good news for gun owners and Second Amendment supporters, though I’ll admit that’s a slim possibility with Biden in charge of the appointment.
With the Lefty already eyeing the Supreme Court, however, I’m keeping my fingers crossed that at least four of the current justices vote to accept one of the many Second Amendment cases that SCOTUS will be asked to hear in the coming months. Hopefully we can get some good case law buttressing our right to keep and bear arms before Democrats turn their attention to the Court in earnest.