Exploring the Impact of Justice Breyer's Supreme Court Retirement

With Justice Stephen Breyer retiring this year, President Joe Biden has the opportunity to name a new justice to the U.S. Supreme Court. Biden has announced his intention to appoint a Black woman to fill the vacancy.

On February 14, Adam Liptak, Supreme Court correspondent at the New York Times, and Lee Epstein, the Ethan A.H. Shepley Distinguished University Professor at Washington University in St. Louis, visited RAND virtually to share their expertise on the court’s structure and internal balance of power, the implications of past and current cases before the court, and why it matters who is confirmed to serve on the court. Dean Nancy Staudt introduced the speakers and moderated the discussion.

Moves to shape the court in ways that better reflect the U.S. population are not new. President Ronald Reagan made a similar campaign promise to appoint the first woman to the court. Improving the diversity and representativeness of the nation's highest court is important, even if the next appointment cannot alter the court's balance of power in the short term.

Epstein explained that the new appointee is likely to be ideologically similar to the outgoing Justice Breyer. However, she noted, “As Justice Byron White [who served on the court from 1962 to 1993] famously observed, every time a new justice comes to the Supreme Court, it’s a different court.” Liptak agreed that the court’s ideological balance wouldn’t change in the short term, with conservatives remaining in the majority, but added that the justices’ lifetime appointments mean that the court’s composition has implications over a generation.

Epstein and Liptak took questions about Breyer’s legacy, the outcome of the upcoming challenge to Roe v. Wade, what’s happening on voting rights, the prospect that Chief Justice John Roberts or other conservative justices will diverge from their typical ideological paths in the future, individual justices’ personalities and leanings, and whether the Supreme Court has become a mere extension of partisan politics. In responding to concerns about the court’s polarization, Liptak clarified that the court is involved in plenty of legal decisions that are not political at all. Epstein added that, according to studies, the court is not nearly as politically divided as Congress or the public.

The discussion addressed the possibility of expanding the size of the court, primarily based on the argument that the court is illegitimately imbalanced to favor conservatives as a result of political maneuvering. Epstein gave a brief overview of the history of changes to the court’s size and what is needed to implement such a change. The pair took questions about potential nominees to fill the vacancy, the potential importance of a nominee’s age, and the relative homogeneity of current and recent justices’ backgrounds (e.g., previously served on the federal appeals court, attended ivy league law schools).

Epstein and Liptak also explained a concept that might be unfamiliar to most Americans: the “shadow docket,” a slate of cases that require prompt action and that the court hears on an emergency basis without hearing arguments. They stated that the shadow docket has been used as a workaround to the traditional process that brings the case to the court on the so-called merits docket. However, they noted that the court seems to be reining in the use of this mechanism after its frequent use related to, among other things, the COVID-19 pandemic.

As the country anticipates major Supreme Court decisions, all eyes will be on the nomination and appointment of a new justice. It will be important to remember that the justices have a great deal of discretion in deciding which cases to hear in the first place. With a lifetime appointment, who is selected to sit on the court matters, but the implications of the decision about who replaces Breyer will shift over time and last for decades.

—Lauren Skrabala