The Breyer Patch
To stave off court packing, Roberts needs to show Breyer the door
Liberal Democrats are asking Justice Breyer to vamoose while Democrats still control the senate. In his latest, Jack Hughes finds a historical parallel that points to a possibly unlikely ally for liberals: Chief Justice John Roberts.
by Jack Hughes
Emboldened by our having been proven right that former Vice President Dan Quayle is a resurgent force in American politics, we here at The Experiment have become increasingly bullish about another of our theories – that Supreme Court Chief Justice John Roberts has been copying from the playbook written by his predecessor Charles Evans Hughes to prevent President Joe Biden from expanding the size of the Court.
Readers will know we noted the Roberts Court issued a series of surprising decisions which were welcomed by the same progressives pressuring Biden to nominate two or possibly four ‘extra’ liberal justices to counterbalance the conservative majority created by Donald Trump. We compared the Court’s decisions to surprise rulings delivered by the Hughes Court in 1936 which undermined FDR’s court packing plan.
This strategy was successful until last month when the conservative majority refused to press pause on Texas’ new abortion law. We canvassed the consequences of that decision in an early September piece, arguing the manner in which the Court dealt with the decision forced President Biden’s hand by galvanizing progressives at the very moment he needed to placate them in the aftermath of his exit from Afghanistan.
Adding to that pressure is the clock is running down on the Presidential Commission on the Supreme Court of the United States which was tasked, among other things, with considering the size of the Court – but, really, whether it should have more than nine justices (nobody is suggesting shrinking it). Biden has deferred questions about his future plans for the Court until the Commission reports back to him in November.
All this to say we’re fast approaching the endgame and Chief Justice Roberts only has time to call one last play from Hughes’ playbook – the Van Devanter Defense. The Hughes Court sapped support for Roosevelt’s court-packing law in two ways. First, they delivered a series of surprise decisions which upheld the constitutionality of certain New Deal measures. Second, they created a vacancy for Roosevelt to fill.
We’re fast approaching the endgame.
Part of what fueled FDR’s frustrations with the Hughes Court was that he hadn’t appointed any of them. There hadn’t been a Supreme Court vacancy during his entire first term. In fact, FDR believed the older Republican-appointed judges who were striking down his New Deal programs had served past their best before date to deny him the opportunity to nominate someone to the Court. Enter Willis Van Devanter.
Justice Van Devanter was named to the bench in 1911 by President Taft. He served on the Court for over 26 years and was a close associate of Chief Justice Hughes with whom he had served twice. (Hughes was on the Court both from 1910 to 1916 and again from 1930 to 1941.) Although it’s said Hughes didn’t ask his friend to fall on his sword to shield the Court from Roosevelt’s plan – it’s what Van Devanter did.
If Chief Justice Roberts wanted to call the Van Devanter Defense, he would likely look down the bench to another judge who has served on the Court for more than 26 years – Justice Stephen Breyer. Since Justice Ruth Bader Ginsburg died a year ago, on September 18, 2020, there’s only one thing that progressive pressure groups have called for more often than an expanded Court – and that’s Justice Breyer’s retirement.
Breyer has been assiduously non-committal about his retirement, saying only that he has no intentions of dying on the Court. That’s been of little comfort to those whose greatest fear is that he will stay on until a Republican is back in the White House or the Republicans again control the Senate, causing a repeat of the nightmare scenario they suffered after RBG’s death. The Texas abortion case confirmed their worst fears.
“There are many factors…the role of the Court and so forth is one of them…the institutional considerations…I think about those things.”
But there are subtle signs Breyer is biding his time to increase the Court’s leverage with Biden. Breyer told CNN’s Joan Biskupic there were two factors that would impact his decision to retire, his age and the Court. He elaborated on this second one with Fox News’ Chris Wallace: “There are many factors…the role of the Court and so forth is one of them…the institutional considerations…I think about those things.”
Wallace then asked Breyer about Biden’s Presidential Commission and the idea of increasing the number of justices on the Court. Breyer’s answer left no doubt where he stood: “Well, if one party could do it, I guess another party could do it. And the more things…on the surface it seems to me you start changing all these things around, and people will lose trust in the Court.” Are those his “institutional considerations?”
Breyer has given interviews in recent weeks ostensibly to promote his new book The Authority of the Court and the Peril of Politics, in which he argues that restructuring the Court would undermine its authority the confidence that Americans have in it as an apolitical body. Yet, to the extent that he’s using those interviews to talk about both his book and his retirement he’s also sending signals to the Biden White House.
(Breyer’s book tour also brought him to the Late Show with Stephen Colbert where he was asked the “most important question” which Colbert always puts to Supreme Court guests: Is a hotdog a sandwich? Breyer ruled “sometimes yes and sometimes no” which is correct if he meant it depends on whether the wiener is on a bun. We would only add that Breyer’s seat on the court was once held by Justice Frankfurter.)
Critics will note, correctly, that whereas Justice Van Devanter’s retirement actually changed the makeup of the Court – he was an anti-New Dealer who was replaced by a pro-New Dealer – Justice Breyer’s resignation wouldn’t have such a big impact insofar as it’d be a one-for-one senior liberal judge replaced with a younger liberal judge. The majority on the Court would still be Republican-appointed conservatives.
“I have looked at what people have done in the past.”
Yet, it’d still give Biden something he doesn’t have, and might not otherwise get, a seat to fill with the justice of his choice. If Breyer doesn’t retire before next year’s midterms, and Republicans take back the Senate, it would create the same scenario Barack Obama had when they refused to confirm Merrick Garland. (It’s worth noting the other justices today are at least 10 years younger and unlikely to go early.)
Breyer has researched and written about Supreme Court history, including about the Hughes Court. And while he’s refused to delve into his thought process or who he’s talked to about his retirement, he did confess to PBS News Hour’s Judy Woodruff: “I have looked at what people have done in the past.” Woodruff clarified “including other justices?” Breyer confirmed: “Oh! Those are the ones who are most relevant!”
If Breyer and Roberts are setting up to run the Van Devanter Defence this is how it’ll play out: Friends of the Court will start making it clear, implicitly or impliedly, that Justice Breyer will retire sometime this fall if Biden decides not to pursue the idea of appointing additional justices. They’d be careful to make clear, explicitly and expressly, that there’s no quid pro quo – just pro forma “institutional considerations.”
Jack Hughes is a communications consultant based in Canada. His previous contributions to The Experiment include “Same of Thrones,” “Tippecanoe and Agnew Anew,” “Harris / Shuri 2020,” “Bidenfeld,” “Firth and Firthiness,” “The Ballot of Bill McKay,” and “The World Wants ‘The West Wing,’” among others. His inexplicably extensive writings on Dan Quayle are “The Unusual Suspect,” “The Unusual Suspect II,” “The GOPfather,” “Porqua, CoQau?”, “Quayle’s Hunting Season” and “I Told You So.” Connect with him on LinkedIn here.
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