U.S. Supreme Court Justice Stephen Breyer, from the more progressive wing of the court, is due to retire in June at the end of the court’s current tenure, offering President Joe Biden a chance to fulfill a campaign promise to nominate a black woman to the position.
The information was anticipated by NBC and CNN on Wednesday (26).
Now 83 years old, the oldest on the Supreme Court, the justice was nominated by Democrat Bill Clinton in 1994. Only Clarence Thomas, nominated by George HW Bush three years earlier, has had more time on the court.
Breyer’s departure gives Biden the chance to make his first Supreme Court appointment. Whichever is chosen, however, the court’s conservative majority configuration will be maintained. With the three appointments made by former President Donald Trump, the highest instance of American Justice today has 6 judges of this aspect and 3 who usually adopt more progressive decisions.
In the 2020 presidential campaign, Biden said he would like to nominate a black woman for the post, an unprecedented gesture – the intention was ratified on Wednesday by the White House press secretary.
Among the names speculated by the American press are Ketanji Brown, who served as assistant judge to Breyer himself and now serves on an appeals court, and Leondra Kruger, of the California Supreme Court. Federal judge Julianna Michelle Childs runs out of South Carolina. Aside from Thomas, only one other black person ever held a seat on the U.S. Supreme Court: Thurgood Marshall, from 1967 to 1991.
On the Supreme Court, Breyer is considered a moderate progressive and, on several occasions, was responsible for brokering agreements between the ideologically opposed wings of the court. He himself stressed that his aim was to strengthen democracy and provide viable legal principles to an extensive and diverse nation.
The magistrate often votes more to convict defendants than other justices on the progressive wing, even though he has become increasingly hostile to the death penalty. In the last term of the court, he played a prominent role in the defense of Obamacare, a health program created during the administration of Barack Obama.
In an August interview, Breyer said he was thinking about retirement and recalled that colleague Antonin Scalia, who died in 2016, had told him he didn’t want “someone appointed who is going to reverse everything he’s done for the last 25 years.” “I don’t think I’ll stay there [na Suprema Corte] until dead.”
Biden’s nominee needs to be approved by the Senate before he can actually take office in court. Today, the government has a fragile majority in the House, with 50 parliamentarians, in addition to the tie-breaking vote of the vice president, Kamala Harris – there are 100 senators in all. This configuration spurred certain wings of the Democratic Party to try to convince Breyer to ask for retirement, in the hope that Biden’s nomination of a new progressive magistrate, still in the first half of his term, would be facilitated. US Supreme Court justices serve for life.
The midterm legislative elections will be held in November, and Biden is facing a bad moment in terms of popularity, with problems linked to the coronavirus pandemic (such as the increase in cases due to the omnin variant and stagnant vaccination rates) and the economy (inflation is at its highest level in nearly four decades). Therefore, difficulties are expected for Democrats in the election, with the majority threatened in both houses of Congress.
Biden’s appointment won’t tip the court’s ideological balance, but if the betting exchanges are right, it will allow the nominee to stay in court for many years. Brown is 51, Kruger, 45, and Childs, 55. The same strategy was used by Trump — his last nominee, the ultraconservative Amy Coney Barrett, reached the Supreme Court at the age of 48.
The nomination, the third in the Republican term, was only possible due to the death, at age 87, of Ruth Bader Ginsburg, a progressive icon of American justice. As with Breyer, she came under pressure to retire between 2013 and 2015, when the Senate had a Democratic majority.
Barrett’s confirmation came just eight days before the 2020 presidential election, when Trump was defeated by Biden. The process at the time was the subject of questioning, and members of the Democratic Party tried to prevent it in various ways. They brought to light the apparent hypocrisy of Republicans, who opposed the appointment of Judge Merrick Garland by then-President Barack Obama in 2016, after the death of conservative Scalia, eight months before the election that would choose the Democrat’s successor.
At the time, Trump supporters claimed that the appointment could not be made close to the election and that it would be up to the new president to appoint a magistrate for the vacancy. With the Republican victory in the Barrett case, the court now has 6 conservative judges, increasing the advantage over the progressives. Earlier, Trump had already nominated Neil Gorsuch in 2017 and Brett Kavanaugh in 2018.
Since that turn, the highest judicial instance in the country has started to impose obstacles to issues dear to progressives. Last year, Biden tried to suspend state laws that create obstacles for women wanting to have abortions, but the court did not accept the federal administration’s arguments.
The most restrictive law in the country is that of Texas, where since September women are prohibited from using the procedure from the sixth week of pregnancy, when many have not even discovered their pregnancy.
The legislation makes no exceptions for pregnancies resulting from rape or incest, as in Mississippi, where the practice is prohibited after the 15th week of pregnancy, except in medical emergencies or fetal malformation. In early December, the Supreme Court indicated that it will hear cases challenging the constitutionality of Mississippi’s legislation, but four justices have already indicated that they must vote in favor of continuing the law. In practice, if one more judge opts for validation, other states will be able to adopt such rules, without being sued.
Abortion was legalized in the US in 1973, in the case known as Roe v. Wade, when the court understood that it was not up to the government to interfere in a woman’s decision to keep a pregnancy or not.
After 19 years, the court updated its position and started to consider the concept of fetal viability: women can abort without restrictions until the moment the fetus is able to survive outside the uterus, which tends to happen usually after 22 weeks — the period is contested by conservatives.
Last Monday (24), the court also agreed to discuss a case that proposes an end to affirmative action based on skin color for admission to undergraduate courses at Harvard and North Carolina universities. If the conservative majority agrees with the arguments of the plaintiffs, the decision could have a ripple effect, with measures being repealed in other institutions.
The case is expected to be on the Supreme Court’s agenda between October this year and June 2023, by which time Biden’s nominee will likely have already been confirmed by the Senate.
Still in recent verdicts against the Biden administration, the court in August ordered the return of an immigration policy from the Trump era, known as Remain in Mexico, which establishes that undocumented immigrants — except Mexicans — who arrive in the United States by land must be sent back while they wait for their asylum applications to be processed in the US courts.
In addition, on the 13th, the Supreme Court prevented the White House from forcing workers at large companies to be vaccinated against Covid. On the other hand, the court upheld mandatory immunization for health workers in federally funded locations.
WHO IS WHO IN THE SUPREME COURT
conservative wing
Jonh Roberts, 66
Nominated by George W. Bush in 2005. Although considered conservative, the current president of the Court sometimes acts in a moderate way
Clarence Thomas, 73
Nominated by George Bush Sr. in 1991
Samuel Alito, 71
Nominated by George W. Bush in 2006
Neil Gorsuch, 54
Nominated by Donald Trump in 2017
Brett Kavanaugh, 56
Nominated by Trump in 2018
Amy Cohen Barrett, 49
Nominated by Trump in 2020
progressive wing
Stephen Breyer, 83
Nominated by Bill Clinton in 1994
sonia sotomayor, 67
Nominated by Barack Obama in 2009
Elena Kagan, 61
Nominated by Obama in 2010
