Last month, Supreme Court Justice Stephen Breyer announced his retirement after 27 years of service on the Court. Progressive groups had been pressuring Breyer to retire over the last few years, arguing that a more progressive voice should hold his seat. Although Breyer had previously resisted their pleas, now that his departure is official, these groups may finally get their wish. President Biden has promised to announce his nominee to replace Breyer by the end of February, with many expecting him to fulfill his campaign promise to nominate the first Black woman to the Court.
Although Biden’s nominee will be a historic pick, some have regarded Breyer’s replacement, no matter who it is, will have little influence on the Court’s functionality. There’ll still be a 6-3 conservative supermajority, which ensures that the liberal voices of the court will rarely join majority opinions, especially on landmark cases. The coverage of Breyer’s retirement certainly conveys a lighter attitude than what was granted to President Trump’s three nominees, as the ideological makeup was at stake. Now, with a conservative grip cemented on the Court for likely decades, one may conceivably presume that replacing a liberal justice with another liberal justice doesn’t matter.
However, that outlook is severely flawed and misunderstands the role of dissents in the judiciary. It is certainly likely that the three liberal justices will remain in the minority, particularly on high-profile cases. Yet, their dissents are of vital importance. First, dissents offer the ability for the majority opinion to be refined. Regardless of a case’s outcome, it’s necessary that the Court’s opinion provides clear guidance on the law and address all the issues at stake. While one may disagree with the content of an opinion, everyone can appreciate the necessity of polished writing, particularly in lawmaking where semantics matter heavily.
Second, although it is unlikely, dissents can also sway the Court. The late Justice Ruth Bader Ginsburg once explained that a dissenting opinion may become the majority opinion as many as four times in a single term. While that number appears insignificant, the lesson learned is that dissents have the potential to become the Court’s official opinion.
Third, as Justice Ginsburg described them, dissents are “appealing to the intelligence of a future day.” Although a dissent may not reflect the law of the land today, it lays the groundwork for future legal opinions when current rulings are potentially overturned. At times when the judiciary formally recognizes its mistakes, a dissent provides the framework and reasoning to rectify that injustice. In this sense, dissents strengthen the Court and the legitimacy of the law in our nation. The late Justice Antonio Scalia was correct to assert that dissents “augment rather than diminish the prestige of the Court.”
Even if Biden’s nominee remains in the minority (absent the possibility of a liberal majority in the future), their contributions to the Court through dissents offer a powerful toolset for current and future judicial rulings. Despite this, some may ignore my praise for dissents and reiterate the liberal minority’s lack of influence on current cases. In this view, as long as liberal voices are in the minority, their dissents don’t matter. While the argument does have merit, it still doesn’t deny the significance of Breyer’s departure and the burden it leaves for his successor.
To understand the ramifications of Breyer’s retirement, one must understand the judicial context of his tenure. Breyer stems from a time of judicial moderation and compromise where the Court wasn’t overtly political. He served alongside the likes of Sandra Day O’Connor, Anthony Kennedy and David Souter, conservative justices who, despite their politics, cooperated with liberal justices like Breyer to reach compromises on rulings.
Moreover, like other justices from the time of his appointment, his confirmation process lacked the partisan bickering and politicking we see today. When he was confirmed in 1994, he received 87 votes in the Senate, an overwhelming majority we haven’t seen in recent Supreme Court justices.
Breyer represents a time where the judiciary lacked the clear partisanship we see today on the Supreme Court. At the time of his confirmation, the Republican Party wasn’t engaging in hypocrisy on whether the president can nominate justices in an election year, which I’ve written on before. Throughout his career, Breyer built consensus with conservative justices to produce rulings that generally satisfied liberals and conservatives. As the Court becomes more politicized and partisan, Breyer’s departure potentially signals the end of compromise and cooperation above political ideology on the Court. While it reflects the increasingly polarized nature of our nation’s politics, it also threatens the preservation of our rights and liberties.
I use the word “potentially” to convey that this prediction is not firm. Breyer’s successor, no matter who it is, will play a pivotal role in determining the future of the Court’s demeanor and relationships between justices. The future Supreme Court justice has an opportunity to follow in Breyer’s footsteps as a mediator and consensus builder, a firebrand that champions liberal causes or something else entirely. Only time will tell.
Blake Ziegler is a junior at Notre Dame from New Orleans, Louisiana, with double majors in political science and philosophy. He enjoys writing about politics, Judaism and the occasional philosophical rant. For inquiries, he can be reached at bziegler@nd.edu or followed at @NewsWithZig on Twitter if you want to see more of his opinions.
