Aziz Huq Writes About What's Needed from Justice Breyer's Replacement
13 Legal Experts on How Breyer’s Replacement Will Change the Court
The news that Justice Stephen Breyer is retiring from the Supreme Court galvanized the legal and political worlds this week. With so much riding on every SCOTUS seat, it’s impossible to ignore how big the consequences might be.
But what will really change? Breyer is a moderate liberal justice, to be replaced by a moderate liberal president with the assent of a fully Democratic-controlled Congress. The ideological divide on the Supreme Court will surely remain 6-3. So what, if anything, will be different with a new face in Breyer’s place? What could be different?
POLITICO Magazine reached out to a select group of legal and court experts to answer the question of why Breyer’s departure could matter — what’s the biggest difference his replacement could make, or, alternatively, is this the rare nomination the country doesn’t have to explode over?
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‘The idea that she will be in a position to “build consensus” seems laughable’
Aziz Huq is a professor at the University of Chicago Law School and an author, most recently of The Collapse of Constitutional Remedies.
Sen. Patrick Leahy (D-Vt.) predicted in 1994 that Justice Stephen Breyer “will have the ability to build consensus.” Indeed, said Leahy, that’s “probably the most important thing he can do.”
Whatever else might be said about how the nomination of the next liberal justice unfolds, the idea that she (or, much less likely, he) will be in a position to “build consensus” seems laughable. The six-justice conservative majority seems likely to pursue the political priorities of the Republican coalition: reregulating abortion; deregulating guns and big money in politics; advancing religious conservatives’ right to discriminate against LGBTQ persons; disarming the federal regulatory state; and arming the coercive state to use violence that falls most heavily on Black and Hispanic people. Scant evidence of an appetite for compromise, or any respect for political adversaries, can be discerned in the majority’s work.
What then will a new Democratic appointee need? It is tempting to say “a strong stomach,” and leave it at that. But more than that, Democrats should entertain the thought that what they really need is a William Rehnquist or a Antonin Scalia: Someone with the stamina, nous and fortitude to play a long game; to call out the Supreme Court, and not compromise, when it falls short of its own professed ideals; and to point the way to something more worthy of veneration. That wouldn’t be Breyer. But it would be a decent way to build on his legacy.
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