Justice Stephen Breyer retired: What this means for Gen Z
Photo obtained from Twitter
KATHRYN CHAVEZ: Are there underground Supreme Court Justices? Are you basic if you say your favorite justice is Ruth Bader Ginsberg? Or is she too mainstream? Is it the right amount of obscure to name-drop someone from the 1800s like John Marshall, or does Sonia Sotomayor make you trendy but not pretentious? One thing is for sure, ask any Democrat who is their favorite Supreme Court Justice in the past two years, and one answer you will not hear is Justice Stephen Breyer.
I know I am not the first to share this information with you, but it is always a healthy reminder that Supreme Court appointments are for life. With Justice Breyer’s retirement at 83, who is the oldest liberal voting justice, Clarence Thomas at 73, followed by Samuel A. Alito, Jr. at 71 who lean conservative will be the two oldest justices on the bench. However, Justice Breyer is reportedly in good health and could have chosen to serve until he passes, whenever that may be. But, with a slim majority in the Senate, Democrats do not want to tempt fate and take the risk of another conservative Supreme Court appointment. The solution? Justice Stephen Breyer must retire.
But who is Justice Breyer, and why him?
Who is Justice Steven Breyer?
Photo obtained from Harvard Law School Library, Historical and Special Collections
Stephen Gerald Breyer, born August 15, 1938, in San Francisco, California, has lived a life that would serve as an traditional, but hopefully out blueprint for anyone who hopes to have a Supreme Court bench spot one day. Lawyer father, Stanford University philosophy major, Marshall Scholar at Oxford, and then magna cum laude Harvard Law Graduate, Breyer could not have set himself up educationally any better. Nominated to the bench by President Clinton in 1994, his 27-year career on the highest court in the land is coming to an end.
Some career highlights before his nomination in 1994 include clerking with associate Supreme Court Justice Arthur Goldberg, Chief Counsel to the U.S. Senate Judiciary Committee, and in 1980 Breyer was appointed to the U.S. Court of Appeal by President Carter.
Breyers first shot at the Supreme Court was taken by Former Justice RBG when Clinton chose her over Breyer, but nothing would knock down his ambitions. However, what would knock him down was a car hitting him in 1993, resulting in several broken ribs and a punctured lung. He would leave the hospital just days later to meet with Clinton about filling the newest open seat.
Why did Justice Breyer retire?
Photo obtained from The Collection of the Supreme Court of the United States
And why all the focus on Justice Breyer? Breyer is the oldest justice on the bench who has a long history of voting in a progressive manner. The general logic is that if he wants to continue championing progressive rights and freedoms, he will retire rather than take the chance a Republican president chooses his successor. The Supreme Court bench currently leans significantly right, with the last three appointments nominated by a Republican president The two most recently appointed Justices, both by President Trump, were placed on the bench within a short two year time frame. Both of their appointments were riddled with contention. Justice Brett Kavanaugh’s appointment featured hearings due to alleged sexual misconduct, and Justice Amy Coney Barrett’s appointment was not just swift, it broke precedent and good faith. With Former Justice Antonin Scalia’s death in February of 2016, then President Obama was denied his appointment choice, Merrick Garland, because Kentucky Senator Mitch McConnell deemed it too close to an election, leaving the possibility of a Republican White House win and Republican appointment. Senator McConnell’s wish came true, allowing President Donald Trump to replace the late Scalia. But what shocked many was Trump's opportunity to replace Reagan appointed Justice Anthony Kennedy after he announced his retirement in 2018. Justice Barrett’s appointment was not just Republicans going back on their word, but it was another insult to the notion of bipartisanship. This split in the court can recently be seen in Edwards v. Vannoy, regarding the sixth amendment and retroactive juries, which was decided in May 2020 in a 6-3 decision.
Justice Breyer retiring was the only possible solution to getting a guaranteed Democrat-appointed justice on the bench. There are technically other solutions to change the way the Supreme Court looks, this even includes Biden appointing a judge without a sitting one passing or retiring. But, reflect on how hard it was even to come an inch away from getting voting rights legislation; Supreme Court reform is basically a mythological creature.
What does Justice Breyer’s retirement mean for Gen Z?
While it often feels so far removed from daily life, the Supreme Court has a huge impact on the way we live. Breyer’s appointment was a few years before Gen Z was born, and whoever replaces Justice Breyer will likely be on the court until we are in our late 40's or 50's. Breyers replacement will sit on the bench as we become adults, enter the workforce, and have children. The decisions made by Breyers replacement can radically change the world we continue to live in.
One of the most prominent conflicts in America and the courts is abortion; deciding who has the right to choose what a woman does with her body and what those choices are. Local court cases about abortion move their way up every year, slowly chipping away at Roe v. Wade. Justice Breyer's replacement will undoubtedly vote on an abortion case during their time, and with a current conservative majority, every liberal vote counts.
To add to the drama, our world is slowly burning itself to death. Cases regarding climate change have already begun and will only become more urgent and frequent as time goes on. Justice Breyer's replacement will have a voice in whether or not our planet will be around for us to meet our grandkids.
The whole slate of cases for the next Supreme Court term has not been announced, but three have:
Students for Fair Admissions, Inc. v. President & Fellows of Harvard
Axon Enterprise, Inc. v. Federal Trade Commission
Sackett v. Environmental Protection Agency
For Gen Z, the two cases to pay attention to are Students for Fair Admissions, Inc. v. President & Fellows of Harvard (college admissions and race) and Sackett v. Environmental Protection Agency (protecting wetlands).
Right now, colleges are allowed to consider race when making admission decisions. In 2003, Grutter v. Bollinger decided that the Equal Protection Clause of the 14th Amendment and Title VI of the Civil Rights Act of 1964 do not prohibit schools from using race as a factor in their admissions decisions. So the aim in Students for Fair Admissions, Inc. v. President & Fellows of Harvard is to reverse Grutter v. Bollinger so race can no longer be a factor in the admission process.
No matter what side of the debate you fall on, what happens in college admissions affects us, may it be in the now, as we are applying to undergraduate and graduate programs, or in the future when our kids do. With all the national press that Operation Varsity Blues (Olivia Jade rowing her way into USC) got, it would not be surprising if more college admissions-related court cases come in the future. Georgetown is right at the center of legal problems and higher education, first with the ninth Georgetown parent officially found guilty due to their involvement in Varsity Blues and how with a class-action lawsuit alleging the university conspired to limit financial aid for admitted students.
Clean water and protecting America's water is, unfortunately, something that is not a priority for some people. In 1966, the Clean Water Act (CWA) was passed, which "established the basic structure for regulating discharges of pollutants into the waters of the United States and regulating quality standards for surface waters." The Sackett family has spent over a decade in court because they filled in some controversial wetlands when building their house. The Environmental Protection Agency (EPA) told the Sacketts to remove the fill and restore the land to its previous condition as the CWA applied to their land. The Sacketts case went to the Supreme Court in 2012, where it was decided that the only way to reverse a decision from the EPA is through judicial review.
The Sacketts are back in the highest court in the land for another round, and what is up for questioning right now is the regulatory jurisdiction of the Environmental Protection Agency. This case brings attention to the fact that clean water is not a part of everyone's battle.
Right now, as Gen Z, we do not get a say in who receives an appointment on the Supreme Court, not until we are old enough to be voted into the Senate. But that does not mean we should not pay attention. For better or worse, our lives can change because of decisions made by the courts. Justice Breyer has been in the majority for decisions that have granted gay marriage and upheld the Affordable Care Act, and his successor has big shoes to fill. With President Biden choosing the nomination, there is hope for a progressive champion and a fair future.
Kathryn Chavez is a First Year Master of Public Policy student at the McCourt School. Originally from outside Dallas, Texas, she graduated from Southern Methodist University in 2021 with degrees in Business Management, Advertising and Fashion Media with a minor in Journalism.