'Dems have to start playing the game': Legal writer explains how to prevent a 7-2 conservative Supreme Court majority

We speak with legal writer and author Adam Cohen about the growing question of whether liberal Supreme Court Justice Stephen Breyer should step down so that he can be replaced while there is a Democratic president and Senate. Justice Breyer is 82 and the oldest member of the high court. "If Breyer doesn't step down now, there's a very real chance that Republicans will eventually fill that seat and maybe turn a 6-3 conservative majority, which has already been terrible, into a 7-2 conservative majority," Cohen says.

Transcript

Why don't you lay out what this growing argument is.

ADAM COHEN: Great to be here, Amy. Great to see you.

Sure. As you mentioned, Justice Breyer is 82 years old, the oldest member of the court. This is a moment where if he retires, President Biden will be able to replace him. The Democrats control the Senate. They could put a much younger person in place. And President Biden has said, in fact, that he would appoint a Black woman. That would be the first Black woman on the Supreme Court.

If Breyer does not retire now, there's a very real danger that the Democrats will lose their control of the Senate. It's a razor-thin majority right now. Literally, if something were, God forbid, to happen to Sherrod Brown or Pat Leahy or any of the Democratic senators who are from states with a Republican governor, who would appoint a replacement — if anything happened to any of those senators, the Democrats would lose control of the Senate. And we know that Mitch McConnell just will not confirm any Democratic appointments to the court. So, if Breyer doesn't step down now, there's a very real chance that Republicans will eventually fill that seat and maybe turn a 6-to-3 conservative majority, which has already been terrible, into a 7-to-2 conservative majority.

AMY GOODMAN: I want to quote from Dahlia Lithwick's piece in Slate headlined "Stop Telling Justice Breyer to Retire," saying, quote, "Not only is it counterproductive, but it misses the point." Lithwick argues, "Replacing a liberal justice with another liberal justice on a 6–3 court is important, but it's also small ball. If we do (or don't) want justices to time their own retirements in exceedingly political ways, there is a way to fix that: implementing mandatory retirement ages or 18-year terms." Adam Cohen, your response?

ADAM COHEN: Yeah, I'm a great fan of Dahlia's, and I do disagree with her on this, for a couple reasons. One is, yes, it would be great to have fundamental reform of the court along the lines that she mentioned. It would be great to have term limits, to expand the court, so we could get, you know, out of this 6-to-3 conservative majority, which I have to emphasize is not representative of where the American public is. It's far to the right of the general public, as we've seen in the last presidential and congressional elections. The problem is, that is not going to happen. The Senate right now is so reluctant to do even mainstream Democratic things, like, say, pass a good infrastructure bill. The Senate is just not going to go along with expanding the court or term limits anytime soon.

So that means Democrats have to start playing the same game the Republicans have. The Republicans have been amazingly effective at the kind of small-bore politics of the court that Dahlia mentions, like, in 2018, Justice Kennedy stepped down when he was 81, a year younger than Breyer, and that allowed President Trump to fill that seat. Republicans hand off their seats very effectively. Ruth Bader Ginsburg, when she was still on the court, there were calls from progressives for her to step down when Obama was president, when the Democrats controlled the Senate. She did not step down, and her seat has now been filled by President Trump with Amy Coney Barrett, who could cast the deciding vote to overturn Roe v. Wade. So, I agree with Dahlia that it would be great to have these big reforms, but Democrats need to play the small-bore game, too.