WASHINGTON — Judge Stephen G. Breyer’s Supreme Court successor may prove to have blazing intellect, infectious charm and fresh liberal perspectives. But there’s no reason to believe the new judge will be able to slow down the court’s accelerated march to the right.
Indeed, the court’s trajectory may have played a role in Judge Breyer’s retirement calculations, said Kate Shaw, a professor at the Benjamin N. Cardozo School of Law. “There’s a good chance,” she said, “that the dynamics on the current pitch — both the speed and magnitude of the change ahead — have had some influence on Breyer’s decision to leave now.”
Perhaps he had thought, she suggested, that someone else might as well stand in the way of a juggernaut committed to fulfilling and swiftly following the wish list of the conservative legal movement in matters of abortion, guns, race, religion and voices.
In a letter to President Biden on Thursday, Judge Breyer, 83, said he would resign at the end of the current Supreme Court term, in June or July, if his successor is confirmed by then. But that liberal-for-liberal swap won’t change the power and ambitions of the court’s six-member conservative supermajority.
Its members, all appointed by Republican presidents, seem largely unconcerned about a sharp decline in public approval of the court, biting criticism from the liberal judges, or the possibility that Congress could add seats or otherwise alter the structure of the court may change. With no headwinds, the conservative majority seems poised to go bankrupt.
“This is a court in a hurry,” said Stephen I. Vladeck, a law professor at the University of Texas at Austin.
The shape and speed of the court’s conservative agenda have come into focus over the past six months.
Most notably, the court repeatedly refused to block a Texas law that bans most abortions after six weeks. The law runs counter to Roe v. Wade, the 1973 decision that established a constitutional right to abortion and prohibited states from banning the procedure until fetal viability, approximately 23 weeks.
The court also repeatedly thwarted Biden administration initiatives to deal with the coronavirus pandemic, blocking a moratorium on evictions and a vaccine or testing mandate for major employers. And it refused to block a lower court ruling demanding the government reintroduce a Trump-era immigration program that forces asylum seekers arriving at the southwestern border to await approval in Mexico.
While there was no split in the lower courts, the usual primary criterion for Supreme Court review, the judges agreed to decide whether to overrule Roe entirely in a Mississippi case and whether affirmative action in higher education in cases involving Harvard and the University of North Carolina. In the latter case, the Court of Appeal had not even decided yet.
It’s no surprise that conservative judges vote for conservative outcomes. But the pace of change, often accompanied by procedural shortcuts, is harder to explain.
The three newest judges, all appointed by President Donald J. Trump, are 50 to 56 years old. If they serve as long as Judge Breyer, they’ll be on court for another quarter of a century or so. They have time enough.
There also appear to be no imminent departures among the other conservatives. The eldest, Judge Clarence Thomas, is 73, ten years younger than Judge Breyer, and of late has been particularly involved in the work of the court.
For example, he has actively participated in advocacy, a change from earlier in his tenure, when he once asked a question for a decade without a question from the bank.
The conservative majority of six judges seems built to last.
Still, two of the last four court vacancies have been created by deaths — that of Judge Antonin Scalia in 2016 and Judge Ruth Bader Ginsburg in 2020.
“Maybe there’s a sense that these majorities can be fleeting,” said Professor Shaw, “so you do as much as you can and as fast as you can because who knows what the future holds.”
When the case over Roe’s destruction was argued in December, the three Liberal members of the court sounded stunned, if not distraught at the prospect of such a sharp shift so soon after a change in court membership. Judge Ginsburg, a liberal icon, was replaced by a conservative, Judge Amy Comey Barrett, Mr. Trump’s third appointee to the court.
“Will this institution survive the stench it creates in the public perception that the Constitution and its reading are merely political acts?” Justice Sonia Sotomayor asked.
The conservative wing of the court seemed unmoved. Indeed, the five most conservative members seemed to have little interest in a more incremental position as outlined by Chief Justice John G. Roberts Jr., who suggested the court might uphold the issue of Mississippi, which bans most abortions after 15 weeks. . and leave it at that for now.
Professor Shaw said some members of the court may have been encouraged by the lack of ongoing national outcry over Texas’ abortion law.
“They dipped their toe in the water to essentially end Roe in the country’s second most populous state,” she said. “They may have come to the conclusion that any response to ignoring Roe would be somewhat muted or short-lived and pose no existential threat to the court.”
Biden’s inconclusive report on possible changes to the court’s processes and structure may also have given the court’s conservative majority confidence that it had nothing to fear from the other departments.
“When the Biden committee came back with its report, the brakes just got looser,” said Professor Vladeck. “This is not 1937.”
That was the year President Franklin D. Roosevelt introduced what came to be known as his court-packing plan. It failed in the direct sense: the number of judges remained stable at nine. But it seemed to put pressure on the court, which began to enforce progressive New Deal legislation.
There doesn’t seem to be any comparable pressure now, Professor Vladeck said. “This is a court that is not shy, is not afraid of its shadow and is not in the least concerned about doing anything to provoke Congress,” he said.
The court has recently been creative in using unusual procedures to get results quickly.
In recent years, for example, it has done some of its major work in what critics call its shadow role, in which the court rules very quickly on urgent requests without full briefing and oral pleadings, often in a succinct ruling late at night.
Likely in response to criticisms of that practice, the court began using this term to hear arguments in key cases that had come to the court as emergency requests, including those about the death penalty, the Texas abortion law, and two programs of the Biden administration that require or encourage vaccination against the coronavirus.
The court has also begun to use another procedural tool to make quick decisions, agreeing to hear cases before the appeal courts have even made a decision.
The “certiorari before judgment” procedure used to be extremely rare, seemingly reserved for national crises such as President Richard M. Nixon’s refusal to turn over tapes to a special counsel or President Harry S. Truman’s seizure of the steel industry.
Until the beginning of 2019, the court had not used the procedure for 14 years. Since then, Professor Vladeck has used it 14 times, Professor Vladeck found.
“This is a court that isn’t afraid to dust off obscure proceedings and unfavorable paths to review,” he said, if that would allow it to reach decisions faster.
“It all ends up in the same place,” he said, “which increases the power of the court.”
