Juan Williams: Time for Justice Breyer to go

Juan Williams: Time for Justice Breyer to go
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How political is today’s Supreme Court?

The website FiveThirtyEight has described the high court as “the most conservative it’s been in 70 years.”

In purely political terms, a statistical analysis published in The Washington Post comes to the same bottom-line. The current 6-3 conservative majority on the court makes it “more conservative than the elected branches [House, Senate and presidency — all controlled by Democrats] to a degree not seen in 70 years.”


The out-of-balance scales of Supreme Court justice can be traced to the heavy hand of Senate Republicans.

First, they prevented President Obama from putting a nominee on the court for nearly a year.

Those same Senate Republicans then quickly confirmed three justices named by President TrumpDonald TrumpIran claims U.S. to lift all oil sanctions but State Department says 'nothing is agreed' Ivanka Trump, Kushner distance themselves from Trump claims on election: CNN Overnight Defense: Joint Chiefs chairman clashes with GOP on critical race theory | House bill introduced to overhaul military justice system as sexual assault reform builds momentum MORE.

By the way, those Senate Republicans “represented fewer Americans than did the Democrats who were opposed,” David Von Drehle, a Post columnist, noted last week.

If there is any doubt about how politicized the court has become, well, listen to a Supreme Court Justice doing a public audition for a right-wing talk radio gig.

Serving up conservative grievance while bragging in the ‘I-Told-You-So,’ style of the late talk-radio king Rush Limbaugh, Justice Samuel AlitoSamuel AlitoSupreme Court strikes down FHFA director's firing protection Five takeaways on the Supreme Court's Obamacare decision The Hill's 12:30 Report: Supreme Court unveils two major opinions MORE said he rightly predicted in a recent court dissent that opponents to gay marriage would be labeled “bigots."

Alito even echoed right-wing complaints about Cancel Culture by saying free speech is “falling out of favor in some circles.”

“That is just what is coming to pass,” Alito told the conservative Federalist Society last November, publicly criticizing his fellow justices’ decision to allow gay people to marry.

Alito had nothing to say about the damage done by years of denial of equal rights and ongoing bias against gay Americans.

Despite such moments, 49 percent of Americans still have “a great deal” or “fair amount” of confidence in the court’s rulings, according to an April Reuters/Ipos poll.

But Americans do have concerns about what is happening to the court. The poll found nearly two-thirds of Americans, 63 percent, now want term limits or age limits on the justices. And more than a third, 38 percent, are open to restoring balance to the court by expanding the number of justices on its bench by four.

Concern over the ideological imbalance on the court prompted House Democrats to introduce legislation in April to expand the court from nine to 13 members.

“We are here today because the United States Supreme Court is broken…out of balance and it needs to be fixed,” Sen. Ed MarkeyEd Markey'Fairplay' to launch campaign for children's online protection 'Killibuster': Democratic angst grows as filibuster threatens agenda Biden risks break with progressives on infrastructure MORE (D-Mass.) said while speaking at a news conference outside the court.

“We are not packing the Supreme Court, we are unpacking it,” said House Judiciary Committee Chairman Jerrold NadlerJerrold (Jerry) Lewis NadlerTech industry pushes for delay in antitrust legislation Senate on collision course over Trump DOJ subpoenas Black Democrats press leaders for reparations vote this month MORE (D-N.Y.), who co-sponsored the bill.

The House bill has little chance. Speaker Nancy PelosiNancy PelosiSchumer vows to advance two-pronged infrastructure plan next month Senators say White House aides agreed to infrastructure 'framework' Tim Cook called Pelosi to say tech antitrust bills were rushed MORE (D-Calif.) has said she has no plans to call for a vote. It has even less chance in the Senate, with Democrats lacking the votes to overcome a GOP filibuster.

Last week, President BidenJoe BidenSchumer vows to advance two-pronged infrastructure plan next month Biden appoints veteran housing, banking regulator as acting FHFA chief Iran claims U.S. to lift all oil sanctions but State Department says 'nothing is agreed' MORE’s commission on Supreme Court reform met for the first time. The commission’s task is to “provide an analysis” of possible reforms, according to the White House, although it is not expected to make actual recommendations.

In any case, the commission will not act in time to deal with urgent cases. Last week the court announced it will hear a case challenging Mississippi’s 15-week abortion ban. It is the clearest challenge in decades to the constitutionality of Roe v. Wade and a woman’s right to decide on having an abortion.

The court previously rejected similar state laws because the justices regarded Roe v. Wade as settled law.

Now, with Trump’s most recent addition to the court, Justice Amy Coney BarrettAmy Coney BarrettSupreme Court's Cedar Point property rights decision protects both sides Supreme Court strikes down FHFA director's firing protection Overnight Health Care: Takeaways on the Supreme Court's Obamacare decision | COVID-19 cost 5.5 million years of American life | Biden administration investing billions in antiviral pills for COVID-19 MORE, a religious conservative with a record of hostility to abortion rights, the court has agreed to hear the Mississippi case.

There isn’t much the majority of Americans who support abortion rights can do to stop the current court from uprooting those rights.

The realistic fight is to keep the current imbalance on the court from getting worse.


That begins with nudging Justice Stephen BreyerStephen BreyerSupreme Court's Cedar Point property rights decision protects both sides Justices strike down California rule allowing unions access to farms Democrats' narrow chance to retain control after 2022 MORE, one of the three remaining Democratic nominees on the court, to retire now.

Breyer is 82 years old. If he leaves the court now, he will be replaced by a Biden nominee who would likely be confirmed with the votes of 50 Democrats in the Senate aided by the tie-breaking vote of Vice President Harris.

Justices Thurgood Marshall and Ruth Bader GinsburgRuth Bader GinsburgOcasio-Cortez says Breyer should retire from Supreme Court Progressives want to tighten screws beyond Manchin and Sinema Juan Williams: Time for Justice Breyer to go MORE, both nominated by Democrats, were both replaced by Republican nominees because they chose not to pay attention to the threat of a politicized court.

Last week, Biden put forward his third slate of judicial nominations — bringing his total as president to 20 nominees for federal judgeships. 

Trump in his single term won confirmation for 226 of his federal judicial nominees — including the three Supreme Court Justices.

With the very real possibility that he could lose the Democrats’ Senate Majority next year — owing largely to those GOP voter suppression laws made possible by the Court — Biden has a limited opening to wrest back the balance of power on the Courts from the conservatives and give liberals a fighting chance for equal justice in the decades to come.

It is Biden as much as Breyer whom history will judge in this moment of supreme political consequence.  

Juan Williams is an author, and a political analyst for Fox News Channel.