The calls for Justice Breyer to resign from the Supreme Court to ensure that Democrats are able to replace him with a suitably progressive judge continue to appear every day or so. The latest, published yesterday by the Nation, was titled “It’s Time for Stephen Breyer to Retire From the Supreme Court.”
But even as progressives are worrying about a worst case scenario in which they lose control of the Senate and can’t replace Breyer or advance any more legislation, some voices have been warning that a pressure campaign to get Breyer to retire is likely to backfire.
Today, GWU law professor Jonathan Turley has a piece pointing out that the Supreme Court may even be trying to put on a show of unity in the face of calls for Breyer’s retirement and for another agenda item on the progressive wishlist: packing the court.
Tuesday the Supreme Court issued two more unanimous decisions in Garland v. Dai and United States v. Cooley. This follows two unanimous decisions last week. The weekly display of unanimity is notable given the calls by Democratic leaders to pack the Court…
Last week, there were two unanimous opinions making this six 9-0 rulings in two weeks…
This is an extraordinary litany of unanimous decisions and could in part reflect an implied message from the justices that this is a court that is not nearly as rigid and divided as suggested by Democratic members and activists.
Turley argues there’s no way to know for certain because Justices will not come out and argue with the partisans directly, but he concludes that this show of unanimity at this moment seems intentional and “may be the Court clearing its throat on these campaigns and threats.”
I think Turley clearly has a point in that a string of 9-0 decisions does seem to undercut some of the more partisan arguments about the court that are appearing nearly every day. However, there is another possibility which may have occurred to Turley but, if so, he doesn’t mention it.
This is pure speculation but what if the unanimous rulings aren’t just a rebuke to the partisans outside but also a kind of gift from the other members to Justice Breyer himself. After all, it’s not just Justice Breyer who is reading all of this stuff in the media. The other justices know the pressure he is under and likely know that he doesn’t want to leave if he feels he’s being pushed out rather unceremoniously.
So maybe this show of unanimity is both a way of telling the partisans to back off but also a way to wind up Breyer’s tenure with the kind of non-partisan action that he believes is crucial for the court. In other words, maybe this is part of a respectful sendoff for a justice they know is about to retire. A string of 9-0 decisions might be a fitting way to honor Breyer’s service and his message and still allow him to retire with some dignity.
Again, I think Turley is on to something about the tea leaves we’re seeing but maybe there’s more to it. June is traditionally the month when justices retire so we should know which way this is going to go in the next few weeks.