Justice Breyer's rejection of reality proves why the Supreme Court needs to be expanded

If there is anyone in Washington, D.C. as stubborn, arrogant, and thick-headed as Sen. Joe Manchin this week, it’s Supreme Court Associate Justice Stephen Breyer. The 83-year-old remains doggedly committed to the fantasy that if he says the judicial confirmation process should not be politicized, it won’t be. As if the last decade of Sen. Mitch McConnell flexing his power hadn’t happened.

Speaking of which, at least five Republican senators have confirmed to CNN that they absolutely will not allow President Joe Biden to have any Supreme Court confirmations if they retake the Senate in 2022. Funny how they’re not heeding Breyer’s admonitions about politicizing the court. That puts Democrats in a delicate position: If they push Breyer too hard now about retiring so Biden and a Democratic majority can get a solid, progressive replacement, he’ll be even more stubborn about staying on the bench. Because old, entitled white men get to do that. They get to dictate the terms of everything to satisfy their own egos at the expense of, well, everyone else.

On the other hand, nothing makes the case for court expansion like Breyer’s intransigence—the court and the country and the entirety of our civil and reproductive rights being held hostage by a literal handful of people is just not sustainable. That destabilizes this whole centuries-old experiment we’ve been on.

While the White House can point to some historic and laudable achievements in the judiciary, there’s still the thorny Supreme Court problem. Biden and the Democratic Senate have pushed the biggest number of federal judges in a president’s first term since President Ronald Reagan. He’s made history with those nominees with their racial, gender, and professional diversity. There’s still some capacity in the lower courts to continue that, and every indication that Biden and Majority Leader Chuck Schumer intend to do as much as possible.

However, there are still Republicans, and those Republicans still have power at the district court level to block him. As of now, Judiciary Chair Dick Durbin is still honoring the blue slip process on those nominations, meaning he is giving deference to home state senators in nominations. And in states with two Republican senators, there have been no confirmations.

Some Republicans say they have been talking to the White House on nominees from their states, and some—notably Tennessee Sens. Marsha Blackburn and Bill Hagerty—say there haven’t been substantive conversations. “That’s despite a senior White House official saying the administration had been speaking with the Tennessee senators about the vacancy since the summer,” The Washington Post points out. Gee, who are you going to trust to be telling the truth there?

The district courts feed the appeals courts, where Biden has seated nearly a dozen judges, with another half dozen either reported out of committee or pending there. Three more appeals court judges—Thomas Ambro of the 3rd Circuit, Diana Motz of the 4th Circuit, and R. Guy Cole and Helene White of the 6th Circuit—announced early this month that they’ll be taking senior status, which allows them to still hear some cases as they chose, but allows Biden to appoint permanent replacements for them.

There’s the possibility that some of these appeals courts will flip with Biden’s opportunities, but unfortunately the worst of them—the 5th Circuit—hasn’t had a vacancy. That’s the court that Republican states, with Texas in the lead, have used to push through every regressive lawsuit from the original Affordable Care Act challenges through the current abortion challenges from Texas and Mississippi.

As long as that appeals court continues to have a Federalist Society and wingnut majority of Bush- and Trump-appointed judges who can feed the Trump-packed Supreme Court challenges, democracy is endangered. Even Supreme Court Chief Justice John Roberts has realized that and has warned his colleagues. The integrity of the court he leads, he wrote in a recent dissent, is in danger.

The 5th will be there to oppose every item of Biden’s agenda, to challenge voting rights, civil rights including marriage equality, and what’s left of reproductive health rights including access to birth control. The 5th Circuit, and the Trump-packed Supreme Court, might even decide the outcome of the next federal elections.

So, yeah, Breyer should wake up to reality and resign already, and Biden and the Senate should do the same when it comes to expanding the court. It’s time to start talking about it as what it is: a constitutional viable and rational solution to a problem created by Republicans manipulating a broken and dysfunctional system. Once they fix the court, they can start to work on the rest.