The Morning: After Breyer

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January 27, 2022

By David Leonhardt

Good morning. Stephen Breyer has done what Ruth Bader Ginsburg did not.

Stephen Breyer at home in 2015.Damon Winter/The New York Times

Timing is everything

Stephen Breyer has just done something that liberal Supreme Court justices in the modern era don't always do: He has timed his retirement so that an ideologically similar justice is likely to replace him.

Ruth Bader Ginsburg did not do so, choosing to stay on the court even when her health was fragile, Barack Obama was president and Democrats controlled the Senate. William Brennan and Thurgood Marshall did not do so either, retiring during George H.W. Bush's presidency instead of trying to wait for the 1992 election. And Earl Warren, the liberal chief justice of the 1950s and '60s, announced his retirement so late in Lyndon Johnson's presidency that Richard Nixon was able to fill the slot after Johnson fumbled the nomination process.

These forfeited liberal court seats are a central reason that conservatives now dominate the court. Democrats and Republicans have held the White House for a similar number of years in recent decades, yet Republican appointees hold six of the Supreme Court's nine seats.

Circumstance has definitely played a role, too — and the sample size of Supreme Court justices is so small that it's hard to be confident about retirement patterns. (Another factor: Republicans' refusal to let Obama replace Antonin Scalia in 2016.) Yet a few liberal justices really do seem to have had a more blasé attitude toward retirement than their conservative colleagues.

Conservative judges seem to view themselves as members of a legal movement, especially since the rise of the Federalist Society in the 1980s. Not since John F. Kennedy's presidency has a justice from the right half of the ideological spectrum been replaced by one from the left half.

Liberal justices, on the other hand, have sometimes placed more emphasis on their personal preferences — whether they enjoy being on the court or would rather retire — than the larger consequences for the country.

In 2013 and 2014, Ginsburg — who, like many justices, loved the job — rejected pleas to step down, despite being in her 80s and having cancer. After her death in 2020, Donald Trump replaced her with Amy Coney Barrett, who may provide the deciding vote to overturn Roe v. Wade, affirmative action and more.

Even Warren's retirement, more than 50 years ago, still shapes the court. He feared being replaced by Nixon and deliberately announced his retirement while Johnson was still president, in 1968. But Warren had waited too long. In the final months of Johnson's presidency, Senate conservatives filibustered his nominee, Abe Fortas, and Nixon was then able to replace Warren as chief justice with Warren Burger.

A conservative has held the job of chief justice ever since.

Stephen Breyer, center, with Edward Kennedy, left, and Joe Biden in 1994.John Duricka/Associated Press

Image and reality

Breyer has made it clear that he does not want to be seen as a liberal justice or a Democratic appointee. He would prefer that people think of him as an impartial judge. The court's authority, he said in a speech last year, depends on "a trust that the court is guided by legal principle, not politics."

Other justices have made similar arguments. "We do not have Obama judges or Trump judges, Bush judges or Clinton judges," Chief Justice John Roberts said in 2018. Barrett put it bluntly last year: "This court is not comprised of a bunch of partisan hacks."

That is a fair description of the justices' rulings on many cases. Unanimous verdicts and heterodox coalitions of justices are common, especially in technical cases that receive little attention outside legal circles. Sometimes, it's also true on high-profile cases, such as recent ones on Obamacare and L.G.B.T.Q. rights.

But on many of the closely watched cases that shape daily life in the U.S., the justices do split along ideological lines, especially in recent years. On abortion, guns, labor unions, corporate regulation, gerrymandering, campaign finance and voting rights, the best way to predict the justices' votes is to know whether a Democratic or Republican president appointed them. The court can often resemble a kind of super-legislature, despite the protestations of Breyer and his colleagues.

For that reason, his retirement is likely to have only a modest effect on major upcoming cases. One Democrat — Bill Clinton — nominated Breyer, and another Democrat — Joe Biden — will replace him. Breyer's successor may be somewhat more liberal than him, a reflection of the Democratic Party's shift since Clinton's presidency. But any such difference will matter little in most cases.

The biggest impact of Breyer's retirement is the situation that it prevents (assuming, of course, that the Democratic-controlled Senate confirms Biden's nominee). His departure means that Breyer has not followed the pattern of Ginsburg, Brennan, Marshall and Warren. Breyer will never be the liberal icon each of them is, but he has managed to uphold liberal ideals — the ideals he and they have shared — in the closing chapter of his public life.

For more

Breyer's legacy, The Times's Adam Liptak writes, is that of a "moderate liberal who worked hard to build consensus and protect the reputation of the court."
Biden has pledged to nominate a Black woman. Here are the likely candidates.
In his own words: Breyer's thoughts on the law and his hopes for democracy.
Democrats hope the opportunity to pick a justice will show voters "tangible results from the fact that you put us in power," Faiz Shakir, an adviser to Senator Bernie Sanders, said.
Breyer was often willing to compromise as a justice. His retirement was consistent with that willingness, says Slate's Dahlia Lithwick.
Breyer believed in the power of facts in a post-factual political age, Linda Greenhouse writes.
Replacing Breyer may block Biden's spending bill, Charles C. W. Cooke suggests in National Review.
The open seat is a chance for Biden to repay — and shore up — Black voters' support, Charles Blow argues.
FiveThirtyEight's Elena Mejía and Amelia Thomson-DeVeaux explain how Biden's more diverse nominees are reshaping lower courts.

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MORNING READS

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ARTS AND IDEAS

Several "Come From Away" cast members in Minneapolis have tested positive.Tim Gruber for The New York Times

Broadway's road shows hit pause

The Omicron surge has put a damper on Broadway's lucrative touring business. Unlike early in the pandemic, though, the problem is not shuttered theaters — it's infected crew members.

"Hamilton" has paused all four of its American touring productions — in Buffalo, Los Angeles, Salt Lake City and San Antonio — because of positive coronavirus tests. This past weekend, the same happened to "Harry Potter and the Cursed Child" in San Francisco and "The Prom" in Baltimore.

The shutdowns hurt Broadway's bottom line: Tours brought in $1.6 billion during the last prepandemic season, only slightly less than New York City theaters. But they also affect theaters around the country where audiences buy season tickets.

"Touring, when we can perform, is going great — the audiences are showing up, and the audiences are enthusiastic," Jeffrey Seller, the lead producer of "Hamilton," told The Times. "Touring is not going great when Covid sweeps through our company."

PLAY, WATCH, EAT

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This classic Korean stew features silken tofu in a fiery kimchi broth.

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The provocative sculptor Charles Ray has a new work at the Metropolitan Museum of Art.

Fashion

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Late Night

The hosts reflected on Breyer's retirement plan.

Now Time to Play

The pangrams from yesterday's Spelling Bee were flippant and plaintiff. Here is today's puzzle — or you can play online.

Here's today's Mini Crossword, and a clue: Commander, for the Bidens (three letters).

If you're in the mood to play more, find all our games here.

Thanks for spending part of your morning with The Times. See you tomorrow. — David

P.S. Times Audio is promoting three editors: Larissa Anderson, Mike Benoist and Anita Badejo.

Here's today's front page.

"The Daily" is about Stephen Breyer. "Sway" features Bob Iger, Disney's former chief executive.

Claire Moses, Ian Prasad Philbrick, Tom Wright-Piersanti, Ashley Wu and Sanam Yar contributed to The Morning. You can reach the team at themorning@nytimes.com.