They demanded “Breyer, Retire” … but whom did he hire?

Demand Justice might have gained PR points for “being direct” in its campaign to shame Stephen Breyer into retirement … but apparently that’s all they gained. A week ago, the progressive activists sent a billboard truck around Washington DC with a prominent ad demanding “Breyer, Retire,” declaring that “it’s time for a Black woman Supreme Court justice.”

HuffPo reporter Jennifer Bendery captured the moment one week ago:

“There’s no time to waste,” the ad emphasized, and apparently Justice Breyer agreed with that much. At the same time progressives tried pulling this stunt, Breyer was in the middle of hiring a full contingent of interns for the 2021-22 term that starts in October, as Reason’s Damon Root pointed out yesterday:

Is Breyer actually planning to step down anytime soon? Probably not, at least judging by the fact that Breyer just finished hiring a full slate of four clerks for the Supreme Court’s 2021–2022 term, which begins in October. Typically, a justice who is nearing retirement does not do so much staffing up for the future.

Of course, Justice Anthony Kennedy did announce his retirement after he hired a full slate of clerks, so there is a recent precedent for Breyer doing the same thing now. On the other hand, as the legal writer David Lat has observed, “I do think Justice Kennedy was especially likely to try and cover his tracks; if Justice Breyer has hired four clerks for OT 2021, I think it’s most likely because he expects to be on the Court at that time.” Lat, a savvy court watcher, thinks that Breyer’s hiring spree means there is now “a 70-30 chance that Justice Breyer remains on the Supreme Court for at least one more Term.”

Breyer recently disappointed progressive activists in another big way. In a Harvard Law School speech earlier this month, the justice came out firmly against court packing, telling those who would rejigger the size of the Court for the purpose of gaining a short-term political advantage to “think long and hard before embodying those changes in law.”

Lat’s observation was actually a mea culpa for having jumped the gun on signals about Breyer’s intentions. At first, Lat had heard that Breyer only hired two interns, which led him to believe that Breyer was planning to exit. His updated prediction, captured by Root, was a walkback, which might explain the “70/30” formulation.

Breyer still might decide to retire, but his recent actions don’t signal any cooperation with progressives. In fact, his speech to Harvard Law was a direct rebuke to Demand Justice and other progressives now pushing the idea of court-packing. That speech took place a couple of days before the Demand Justice stunt, which almost makes this sequence look like an escalation on Breyer’s part, except that he probably never seriously considered retirement in the first place. He’s making it as clear as he can that he won’t get bullied into it either.

That does leave Democrats with a problem. Breyer might retire next year, which would allow Joe Biden to nominate a replacement while Chuck Schumer and Kamala Harris have nominal control of the Senate. However, it puts the Supreme Court right in the middle of a midterm election fight, in which Democrats have a numerical advantage but the opposition party usually has a turnout advantage. A Supreme Court battle would juice GOP turnout even further. But waiting until after the next term after that might mean that Mitch McConnell will control the floor, and therefor limit Biden’s ability to choose a hard-progressive nominee.

To the extent that the Demand Justice and court-packing campaigns backfired, it’s a costly mistake.

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