“Every time a new justice comes to the Supreme Court, it’s a different court,” Justice Byron R. White, who witnessed the arrival of 13 new colleagues during his 31 years on the bench, liked to say.
And yet: Whoever the new justice will be, she will make a difference and not much difference at all. On the side of difference: President Biden has told us she will be a Black woman, the court’s first. The court will, again for the first time, have four female justices.
Still, the rational response to Breyer’s announcement is more relief than joy. Because let’s be practical: There is a six-justice conservative majority. That is not about to change any time soon — certainly not, absent unexpected events, during the term of a Democratic president.
So while it is better to have three liberal justices than two, there will still be only three liberal justices — and that does not a majority make. Breyer’s replacement is apt to be more liberal — but again, that doesn’t make much difference. A dissent is a dissent, however powerful. It is not the law of the land. This time, the new court will be the same as the old court.
Breyer’s retirement was necessary in order not to squander Biden’s opportunity to replace him, but it is not sufficient — not even close — to accomplish a change in the law. A younger justice will be there for decades, but it may take that long for her to be able to write, or even join, a majority opinion in a fiercely contested area of jurisprudence. She will occupy a seat at the pinnacle of government power, yet she will be in many ways powerless, with colleagues who know what they think and who are unlikely to be swayed.
Consider the current legal landscape. It is a fair bet that by the time Breyer leaves at the end of this term in June or July, constitutional protection for the right to abortion will be removed or dramatically curtailed. The scope of Second Amendment rights for gun owners will be broadened. The separation of church and state — the “so-called separation,” as Justice Neil M. Gorsuch called it during a recent oral argument — will be further blurred.
The power of administrative agencies to respond to challenges such as the pandemic has already been diminished, and more regulatory handcuffing is in the offing. The next term promises to sound the death knell for affirmative action in higher education, as the court considers cases from Harvard and the University of North Carolina at Chapel Hill. The question of how far this conservative court will go to revolutionize the law, and how fast, is more or less outside the control of the liberal justices. They can maneuver to try to control the damage, but mostly they are consigned to the sidelines, dissenting.
In this sense, the impact of the next justice will be different from her three most recent predecessors. The death of Antonin Scalia in February 2016, when Barack Obama still had 11 months remaining in his presidency, had the prospect of dramatically changing the court, from a closely divided 5-to-4 conservative majority to a liberal one; McConnell ensured that would not happen, and Gorsuch’s arrival in 2017 maintained the court’s existing balance.
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By contrast, the following year, Justice Anthony M. Kennedy’s retirement and his replacement by Brett M. Kavanaugh moved the court significantly to the right, even though both were named by Republican presidents. And the most dramatic change of all came in 2020, with the death of liberal Justice Ruth Bader Ginsburg and her replacement by conservative Amy Coney Barrett. Overnight, outcomes shifted. To take just one example, the Texas abortion law would not be in effect if Ginsburg were still on the court.
This is a choice that Biden and the Senate should weigh seriously, whether the nominee is D.C. Circuit Judge Ketanji Brown Jackson, California Supreme Court Justice Leondra Kruger or someone else. Every Supreme Court nomination is consequential. But the consequences may not be felt for many years to come.