How much will Biden’s nominee change the Supreme Court?

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“The 360” shows you diverse perspectives on the day’s top stories and debates.

What’s happening

Supreme Court Justice Stephen Breyer announced on Thursday that he plans to retire this summer after nearly 28 years on the nation’s highest court.

Breyer, 83, was nominated by former President Bill Clinton in 1994 and was a mostly consistent liberal vote on important cases involving abortion, the death penalty, voting rights and health care. He also developed a reputation as a pragmatist, a master of details and a fierce defender of the court’s political independence.

Over the past year, some progressive activists mounted an aggressive public campaign aimed at convincing Breyer to step down. That effort had less to do with Breyer’s judicial record than it did a sense of urgency to capitalize on what could prove to be a narrow window of time when Democrats would have the power to replace him with another liberal justice.

Breyer’s retirement gives President Biden his first opportunity to nominate a Supreme Court justice. On Thursday, Biden vowed to keep his pledge to appoint the first Black woman to the court. Though the White House hasn’t yet indicated who it’s considering, legal analysts say there is already a short list of frontrunners to be named the nominee. With 50 votes in the Senate and Vice President Kamala Harris serving as tiebreaker, Democrats have the ability to confirm Biden’s choice without any Republican support if they remain united.

Why there’s debate

Every Supreme Court justice is important, but most legal analysts say Breyer’s replacement will be one of the less consequential confirmations in recent memory. The three justices named by former President Donald Trump — Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett — have solidified a 6-3 conservative majority. Swapping out Breyer for someone with comparable views won’t do anything to reverse the sharp rightward turn the court has taken over the past few years, many experts say.

But others say that while it won’t be as pivotal as Barrett replacing liberal icon Ruth Bader Ginsburg in late 2020, the confirmation of a Biden nominee would still have a substantial influence on the American legal landscape. They point out that, though high-profile partisan battles gain most of the attention, many of the most important cases decided by the Supreme Court involve complex constitutional questions that don’t break along traditional left-right political lines. In those cases, the new justice’s vote could prove to be critical.

Legal scholars also point out that judges can have extraordinary influence even when they’re on the losing side. There is a long history, they say, of dissenting opinions in one case being used to establish legal reasoning that ultimately becomes the basis for landmark rulings down the road. Through those types of opinions, Biden’s nominee could help shape liberal legal thinking for a generation.

What’s next

Biden said he plans to announce his nominee to replace Breyer before the end of February. That would set off what could be a heated confirmation battle that Senate Majority Leader Chuck Schumer intends to complete with “all deliberate speed.”

Before Breyer retires at the end of the current term, the court is set to hand down major rulings that could dramatically rewrite precedent on abortion, gun control, affirmative action and environmental protections.


Black women’s voices will be represented at the nation’s highest court for the first time

“Biden's pick will carry the promise of a Supreme Court that rightly reflects the lives of the people most exposed to the impacts of their rulings while correcting for the erasure and discrimination that continues to harm Black women in the legal profession.” — Fatima Goss Graves, CNN

Every justice plays a critical role in cases that don’t often make the headlines

“The Supreme Court decides many important cases that do not fall as predictably on ideological fault lines. The next person occupying Breyer’s seat could play a key role in those cases where the vote may be 5-4.” — Jessica Levinson, MSNBC

Replacing one liberal for another is important when weighed against the alternative

“The bench will still contain six Republican-nominated justices and only three Democrat-nominated ones. … But in this moment, liberals can take comfort in the fact that Breyer’s replacement is not being chosen by Trump.” — Elaine Godfrey, The Atlantic

The conservative transformation of the Supreme Court is already complete

“Trump ran for office on the promise of remaking the Supreme Court and the lower federal bench. Sadly, he made good on that promise, placing three young and doctrinaire judicial activists on the court. … The Supreme Court has delivered for Trump and will continue to do so—to poach one of his own catch phrases—‘like never before.’” — Bill Blum, Common Dreams

Recent confirmations have been transformative. This one won’t be.

“The truth is, while every Supreme Court appointment is consequential, this will be the least consequential appointment in decades.” — Marc Thiessen, Washington Post

Biden’s nominee will help improve the court’s legitimacy in the eye of the public

“No justice Biden nominates can change the ideological balance of the court significantly, but all new justices change the dynamic on the court. And every time an excluded group is included, that is good for the institution and its credibility.” — Charles M. Blow, New York Times

The court’s rulings could become more conservative without Breyer’s pragmatism

“Often, the progressive movement’s cynical approach toward the Constitution pays dividends. In our current 6-3 environment, however, it may not. The more space there is between [Chief Justice] John Roberts and the median progressive justice, the weaker the progressives become.” — Charles C.W. Cooke, National Review

A well-chosen nominee could help limit how far to the right the court swings

“The most important job of a Biden appointee will not be to join the court's other two liberals in blistering dissents but to influence the persuadable justices on the right to chart a middle course that could preserve the court's legitimacy by reducing its political profile.” — Noah Millman, The Week

Without Breyer, the court’s ideological divide will be even more stark

“After Breyer steps down, [Sonia] Sotomayor will become the senior-most liberal member of the court, and no one doubts her ability to call out the majority’s corruption of the law. It’s notable that neither [Elena] Kagan nor Sotomayor embraces Breyer’s flexible, administrative law–inspired approach to judging; when he departs, that tradition will disappear with him.” — Mark Joseph Stern, Slate

Even in dissent, the new justice’s legal thinking will be influential

“Although the new justice might be writing often in dissent, she could still make an impact on the court by writing for history. … The new justice, along with Justices Elena Kagan and Sonia Sotomayor, can use dissenting opinions to lay out novel lines of legal argumentation and strategy for when the day comes that the numerical advantage narrows between the liberal and conservative appointees via changes in the court’s personnel.” — Anna O. Law, Politico

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Photo illustration: Yahoo News; photos: Bill O'Leary/The Washington Post via Getty Images, Erin Schaff/AFP via Getty Images