Democrats got arguably their first major good news in several months Wednesday, with the revelation that Supreme Court Justice Stephen G. Breyer will retire at the end of the court’s current term.
Replacing Breyer, 83, wouldn’t change that 6-3 deficit, but it would prevent it from getting worse if Republicans retake the Senate this November and/or the presidency in 2024.
Senate Minority Leader Mitch McConnell (R-Ky.) exploited the rules in both declining to give Merrick Garland a hearing during an election year in 2016 and confirming Amy Coney Barrett under very similar circumstances in 2020. He has also served notice that he might not confirm President Biden’s nominee over the final two years of Biden’s first term if McConnell controls the Senate, leaving the court at eight justices.
And to be sure, the window was indeed running quite short — with little assurance Democrats could replace Breyer anytime soon if he were to stick it out. Not only do Biden and his party find themselves in rough political shape this election year, but midterms almost always favor the opposition party, and Republicans need to gain only one seat in the 50-50 chamber.
Beyond that, the Democrats’ path gets arguably even more arduous. As Charlie Cook noted just this week, the Senate map in 2024 features Democrats defending more than half a dozen seats in states Trump won at least once. Like the House, the Senate map cuts against Democrats even in a neutral environment; aligning a Democratic president with even the kind of bare Democratic Senate majority they have today will be a difficult task for years to come.
Then there’s the longevity issue. The trend in recent years has been to nominate younger and younger picks, recognizing they’ll have longer to take advantage of their lifetime appointments. Barrett and Neil M. Gorsuch were only the second and third 40-somethings nominated to the court in the past half-century.
Combine that with increasing life expectancies, and both they and Justice Brett M. Kavanaugh (confirmed at 53 years old) will probably be able to spend three decades or more on a court where the average tenure has historically been only 16 years. A 2018 analysis by the David Fishbaum predicted the average Supreme Court tenure would more than double to 35 years over the next century.
That means, should the court stay at nine members, there will be significantly fewer vacancies to fill in the coming years and decades, and each will take on added importance — making their timing even more important, as well. The three vacancies Trump was able to fill in just four years (in part thanks to McConnell’s gamesmanship in 2016) was already a historical aberration; it’s likely to be even more so moving forward.
But all of this remains only good enough to probably allow Democrats (should they be able to confirm a replacement with their 50 seats) to keep their historically bad Supreme Court deficit from getting worse. Assuming Biden nominates someone such as federal appeals court Judge Ketanji Brown Jackson, 51, or California Supreme Court Justice Leondra Kruger, 45 — Biden has promised he would pick a Black woman for any such vacancy — they would probably give themselves about three more decades from Breyer’s seat. They would then have to rely on other timely vacancies moving forward, like Trump got from the retirement of swing vote Justice Anthony M. Kennedy and the death of liberal Justice Ruth Bader Ginsburg.
Clawing back from down 6 to 3, though, will remain difficult, for many of the reasons listed above. In addition, there’s the one that hangs over Breyer’s conveniently timed retirement: Such retirements are almost always conveniently timed these days. Breyer is now the seventh justice in a row to retire at a time in which the party he most aligns with just so happens to be able to replace him. That’s every retirement in the past 30 years, and it’s no coincidence; even Breyer alluded to this being a factor.
In other words, Democrats probably can’t and shouldn’t count on the 73-year-old Justice Clarence Thomas or his fellow conservative, 71-year-old Justice Samuel A. Alito Jr., doing them any favors moving forward. But at least they’ll now have a chance to stop the bleeding.