The Washington PostDemocracy Dies in Darkness

Democrats’ very real nightmare scenarios on Stephen Breyer

Supreme Court Justice Stephen G. Breyer awaits President Barack Obama's arrival for the State of the Union address in 2014. (Bill O'Leary/The Washington Post)

Thanks to coincidences and some bare-knuckle politics by GOP leaders, Democrats are staring down the most conservative Supreme Court in decades. And this past week, they got a reminder about how pivotal that could be. The court decided to take up a key abortion case that conservatives hope the newly 6-3 conservative court could use to unravel Roe v. Wade.

Democrats’ response has been somewhat muted: They’ve begun work on President Biden’s court reform commission, while some have re-upped an effort to pack the Supreme Court with more justices.

But this is misguided — and not just because packing the court is somewhere between wishful thinking and a pipe dream. It’s also because the most pressing and realistically crucial question about the future of the court is the future of Justice Stephen G. Breyer. And time is more of the essence than many seem to appreciate.

There is an effort to get Breyer, 82, to step aside in the name of allowing a Democratic president and a Democratic-controlled Senate to replace him before the 2022 elections. (At that point, the 50-50 Senate could rather easily revert to GOP control.) Many on the left defended Justice Ruth Bader Ginsburg against calls for her to step down when Barack Obama and a Democratic Senate could have replaced her. That didn’t exactly turn out well.

But the Breyer effort is in no danger of overcompensating for that. And that’s especially remarkable given how eminently possible it is that Democrats won’t even have another year and a half to replace him.

University of Colorado law professor Paul F. Campos noted in a March New York Times op-ed that seats switch from one party to another between elections more often than you might think:

Alarmingly for Democrats, if history is any guide, the odds are quite high [they’ll lose control]. Since the end of World War II, 27 of the 38 Congresses have featured a change in the party composition of the Senate during a session.

That doesn’t mean the change would necessarily work to Democrats’ detriment, rather than their benefit, but all they need is one death, one scandal, one party switch or one other unforeseen event.

From there, it would depend on where that vacancy arose. But there are plenty of candidates for moving Democrats out of the majority.

Of the 50 senators who caucus with the Democrats, about one-third (14) come from states where a Republican governor could appoint a GOP senator to replace them (nine) or where there would be no appointee before a special election could be held (five).

Of those 14, seven are at least 70 years old.

(Six other Democratic senators come from states with GOP governors, but where those governors are required to appoint a member of the same party. More on all the state-by-state rules here.)

There are some nuances within these numbers. For instance, four of the five oldest Democratic senators whom a GOP governor could replace with a GOP appointee come from very blue states: two each from Massachusetts and Vermont. Those GOP governors are moderates who might be pressured to keep the balance of power in the Senate intact.

When Sen. Bernie Sanders (I-Vt.) was considered a candidate to join the Biden administration, Vermont Gov. Phil Scott (R) said in October that he would replace Sanders with another Democratic-caucusing independent senator.

“I don’t have to, but I want to make sure we do things in the traditional way, and that’s to appoint someone from the same party, and also, you know, has the same type of approach as well,” Scott said.

It seems likely that policy would apply to vacancies that might arise for the seat of either Sanders or Sen. Patrick J. Leahy (D-Vt.). (Both men have dealt with health issues in recent years.)

Of course, that comment was both before the election and before we knew we were going to have a 50-50 Senate. And given the stakes, Scott and fellow moderate Massachusetts Gov. Charlie Baker (R) would also face tons of pressure from the right to hand the chamber over to their own party — even if by appointing moderate Republicans like themselves. It’s easy to make these promises when it’s about a politician potentially deciding to step aside and when we don’t yet know how pivotal it would be; it would be more difficult today.

Baker, for his part, has balked at efforts by the heavily Democratic Massachusetts legislature to make sure he would have to appoint a Democrat to replace another senator who was considered a possible Biden appointee, Sen. Elizabeth Warren (D-Mass.).

Beyond those two states, Democrats have 70-plus-year-old senators in New Hampshire (a swing state where GOP Gov. Chris Sununu would pick the replacement) and in Oregon and Rhode Island, where governors can’t appoint replacements and the seats would be vacant until a special election could be held. Those latter cases would hand the GOP at least a temporary effective majority, pending the special elections. And as we saw in Massachusetts in 2010, the blue nature of those states wouldn’t guarantee that it would be only temporary.

Again, history looms here. In the 1950s, there was a similar situation in which the Senate was very evenly divided and then saw power shifts because of deaths and other causes. After the death of Sen. Dwight Griswold (R-Neb.), Democrats briefly obtained an effective majority because of the vacancy. It lasted only a month because a Republican was appointed to replace him, and then-Sen. Lyndon B. Johnson (D-Tex.) didn’t gain the title of majority leader. Today that would mean Democrats could still force votes on a Supreme Court nominee, but the vacancies would last longer, and it would no longer guarantee that the votes would be there.

We’ve also more recently seen control of the Senate flip thanks to a party switch, with Sen. Jim Jeffords (Vt.) in 2001 leaving the Republican Party and turning a tied Senate with effective GOP control into a Democratic Senate. There is no evidence that a Democratic senator would do that today — Sen. Joe Manchin III (D-W.Va.) would seem the likeliest candidate for such a thing — but that possibility also reinforces the tenuousness of an evenly split Senate.

And were such a situation to arise, there is little doubt that Senate Minority Leader Mitch McConnell (R-Ky.) would do just about anything he could to exploit it. We’ve seen his willingness to leave a Supreme Court seat vacant for many months when it suited him, and then to fill a seat for the GOP under very similar circumstances. Leaving a vacancy open for the final two years or more of the Biden presidency would take things to another level, but it can hardly be ruled out.

The problem for Democrats in trying to force Breyer out, of course, is that there’s just not a great way to go about it. Launching a very public campaign would invite allegations of politicizing the court (allegations that should be mitigated by the GOP doing plenty on that front in recent years) and might not have much impact, given that the decision rests with one man with a lifetime appointment who can do whatever he wants.

But Democrats have been remarkably timid about this. We’re now four months into the Biden presidency, with little sign of movement on this front. And every day that passes should make Democrats a little more nervous.

Being able to replace Breyer wouldn’t shift the balance of the court, but it would go a long way toward stopping the bleeding. And right now, when it comes to the nation’s highest court, Democrats are indeed bleeding.