VCU news

By Brian McNeill

It was widely reported Wednesday that Justice Stephen Breyer will retire from the U.S. Supreme Court after serving for more than 27 years and allowing President Joe Biden to nominate a successor.

John Aughenbaugh, Ph.D., an associate professor in the Department of Political Science in the College of Humanities and Sciences, who teaches Courts and Politics, Constitutional Law and other courses at Virginia Commonwealth University, says Breyer’s decision won’t tilt the ideological balance of the Supreme Court, but it could still have a significant impact on U.S. politics.

Why now? What do you think led to Breyer’s decision?

For judicial politics scholars, it is not all that surprising the justice decided to retire now. One, the Supreme Court has become more conservative the past few years, with the appointment of three justices (Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett) by President Donald Trump. Two, Breyer has probably concluded that for the foreseeable future he will be in the minority on the court, and that is not an ideal way to spend one's last years on the court. And three, if Breyer wants a Democratic president to appoint his successor, and Breyer last year indicated that would be a consideration in deciding when to retire, then this year, before the midterm elections in November, would be the time (as the Republicans could regain majority control of the Senate).

What do you see as the implications for the court and U.S. politics?

No matter who Biden picks, it probably will not alter the decision-making on the current court all that much, as there are six generally reliably conservative justices on the current court — Chief Justice John Roberts and Associate Justices Clarence Thomas, Samuel Alito, Gorsuch, Kavanaugh and Coney Barrett.

Politically, Breyer's seat opening up gives Biden an opportunity to fulfill a 2020 presidential campaign promise — select the court's first female African American member. As such, it would not surprise me if Biden nominated D.C. Circuit Court of Appeals Judge Ketanji Brown Jackson, or California Supreme Court Judge Leondra Kruger — both of whom are talented lawyers/jurists and who are well-known within Democratic Party circles.

The timing of Breyer's retirement announcement is key for Biden and the Democratic Party, because the Democrats could lose their slim majority in the U.S. Senate come November, and the Senate has the constitutional role of accepting or rejecting a president's judicial branch nominees.