Stephen Breyer did something last week that even some Supreme Court watchers may not have noticed, focused as people were on the flood of late-term court decisions. He let it be known that he’s hired the full complement of four clerks for the fall term. In other words, he is not retiring. This could still mean that the associate justice, now 82, will retire next June, which would theoretically give Joe Biden and the Democratic Senate the chance to choose his successor. But why roll those dice?
I think Breyer should retire as soon as possible. He should have retired in January, to be honest, so that Biden could get someone on the court during his honeymoon period. Naturally, the more people like me say that, the more Breyer digs in. The problem with the justice’s stubbornness isn’t merely that he may give a future Republican president a chance to place a seventh conservative justice on the bench, in which case nearly every progressive legal philosophy that Breyer claims to hold dear will be erased from the nation’s law books. No, it’s even worse: Even as Breyer believes himself to be upholding apolitical norms, he’s actually contributing to their further destruction at the hands of the Republican Party.
Here’s the deal, as Joe Biden would say: We have one political party that is obviously doing everything it can to trash democratic norms and traditions. We have a second party that wants to uphold and reinforce those traditions. As you might imagine, there is a pretty constant stream of people in the latter party who don’t want to go where the Republicans go or behave as the Republicans behave.
And so Breyer doesn’t want to politicize the Supreme Court (a little late for that). Attorney General Merrick Garland doesn’t want to behave in the same illiberal fashion as his predecessor, Bill Barr, and so he is going out of his way to reinforce the respect for continuity between one Justice Department and the next on certain matters. Several Democratic senators are reluctant to cashier the filibuster, believing (or saying they believe) that it, too, is an important pillar of our democracy.
This is all done in the name of respecting tradition: If Democrats start governing as Republicans do, the argument goes, then there will be no one left to defend important democratic norms, and Democrats would then be partly responsible for the descent into whatever forlorn phase follows the end of the status quo.
I understand the sentiments. Here’s the problem: No matter how much effort Democrats expend in an effort to defend norms and traditions, it won’t really help save democracy, because all they’re really doing is tying one hand behind their backs. Republicans get away with even more vandalism.
Just compare Breyer’s posture toward retirement to Anthony Kennedy’s. Breyer believes that it’s virtuous to resist all political pressure and insists that justices shouldn’t think about such matters. Kennedy, by contrast, retired under the sleaziest circumstances imaginable in mid-2018. He left the court just in time for Donald Trump to pick his successor with a sitting Senate majority without taking a chance on that November’s midterms.
Now you may be thinking, Hey, Tomasky, you’re arguing in this very column that you think Breyer should do what Kennedy did. Well, in one narrow sense, that’s true. But to equate such moves is to equate Donald Trump to Joe Biden, and there is no equating the two. Biden is a basically honorable man. Trump is the most self-servingly corrupt president in our history. Kennedy left the court knowing that he was possibly allowing Trump to name one of his own jurors, in case the court ever ended up hearing a big United States v. Trump case (which it did not, as it happens); indeed, Trump said outright that he chose Kavanaugh because he felt his nominee, once installed, would never rule against him. And then we had the fact of Kennedy’s son Justin overseeing $1 billion worth of loans to the Trump Organization through his job at Deutsche Bank.
The underlying point is this: Kennedy just said, The hell with norms, I’m doing the skeezy political thing. What was the result? The Republican Party, to which Kennedy obviously did not pretend he owed nothing, got a young (53), intensely political (see Ken Starr) associate justice who may have sexually assaulted a woman when he was young, who may have lied to the Senate during his confirmation hearings on more than one matter, and who had very weird-looking credit card debts. Nevertheless, he’s on the bench, probably until sometime in the late 2040s at the earliest.
Today, Breyer says he’s respecting norms. What will come about as a result? It’s impossible to say with finality. As noted above, maybe he’ll leave next year, in time for Biden to name a successor. But maybe he won’t. Maybe his successor will be named by President Trump or President DeSantis or President Sasse. Then what will he have accomplished? He’ll have put another hard right-winger on a court that will dedicate itself to the gutting of more democratic norms than Breyer could have dreamed possible.
The same can be said, even more starkly, of some of Merrick Garland’s decisions at Justice. He kept Trump protected from E. Jean Carroll’s defamation suit, and he kept the Barr memo on the Mueller report private. He “upheld norms.” But the norms he upheld are letting Republicans get away with, well, not murder, but possible rape in Trump’s case and a grotesque perversion of justice in Barr’s.
Yes, to some extent the Democrats are damned if they do and damned if they don’t. Call it the Democracy Paradox: If they join the GOP in trashing norms, then yes, they’ve done some damage to democracy, but if they uphold norms, it only usually ends up helping the party that’s out to wreck democracy! How does that help norms?
The Democrats shouldn’t try to become like the Republicans. They could never pull it off in any event. But more importantly, they should be aware that any time two teams are on the field and only one is following the rules, that team is going to lose. Moral victories never won a Super Bowl—or passed progressive legislation that changed the country for the better.