Why Ketanji Brown Jackson would be such an upgrade over Breyer

Why Ketanji Brown Jackson would be such an upgrade over Breyer

Perry Bacon Jr. — Read time: 3 minutes

I’m excited about the coming change at the Supreme Court — but not for the reasons a lot of other people are. Ketanji Brown Jackson’s résumé suggests that she would be a great justice, but that’s unknown. What is known is the kind of justice that Stephen G. Breyer has become. And compared with that, Jackson will almost certainly be an improvement.

Until last year, I didn’t have many thoughts on Breyer, but I generally viewed him positively. He wasn’t an inspiring figure like Justice Ruth Bader Ginsburg, nor the kind of forceful voice for traditionally marginalized groups that Justice Sonia Sotomayor has become. And he had some really great moments — most notably the passionate 2007 dissent he read from the bench after the court’s conservatives curtailed consideration of race in school integration plans.

But over the past year, Breyer turned from being a decent-if-unremarkable justice to something much more damaging. While his conservative colleagues were tearing apart the Voting Rights Act, weakening abortion rights and allowing state-level GOP officials wide latitude while constraining President Biden, Breyer responded by … attacking liberals for suggesting that the court usually splits on big issues along party lines, is currently dominated by conservatives and is in need of major reforms. He has displayed an almost comical lack of understanding of the deep divides between the two parties, saying last year, “You need that Republican’s support? Talk to them. … You say, ‘What do you think? My friend, what do you think?’ Get ’em talking.”

It was hard to tell what motivated Breyer. The justice cited cases where he and his colleagues didn’t split along partisan lines to make the broader argument that casting the court as political was both inaccurate and undermined its legitimacy. But in the face of numerous high-profile rulings in which the justices predictably split along partisan lines, with his GOP-appointed colleagues constantly ruling in ways that align with the Republican Party, Breyer’s argument was at best naive.

Such a weak argument can’t help but make you wonder whether Breyer had other motivations, ones that he might not even be fully conscious of. Was he frustrated when Democrats, worried about a repeat of Ginsburg’s disastrous delay of her retirement, started calling for him — even before Biden was inaugurated — to step down? Was his punching left just “performative centrism” meant to demonstrate thoughtfulness and wisdom? Was the 83-year-old longing for the days of a less partisan court, in the way that Biden seems to wish for the politics of the 1970s and 1980s? Was Breyer, an upper-income White man who lives in D.C., blinded to the radicalism of his conservative colleagues because their decisions did not affect him and those in his circle that much?

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Probably a little of all of those things. But regardless, the result was really bad: While legal commentators and others who watched the court closely grew shocked at how unabashedly the majority was becoming Republicans-in-robes, Breyer was echoing the “the court is above partisanship” rhetoric of ultraconservative, GOP-appointed justices Samuel A. Alito Jr. and Amy Coney Barrett.

I would love it if Jackson took after Sotomayor. But even if she doesn’t, Jackson is unlikely to be a new Breyer. A Black woman born in the 1970s who came up as a professional in the 2000s and 2010s almost certainly won’t have misplaced reverence for the good old days and the blinders about the realities of America.

I would urge older Democratic officials entering their final stages in public life, such as House Speaker Nancy Pelosi (D-Calif.), to avoid taking the turn Breyer did. I understand that Rep. Alexandria Ocasio-Cortez (D-N.Y.) and other “Squad”-style Democrats can annoy that older generation, but it becomes a problem when you become so flustered with the new generation of Democrats that you complain about them more than you do Donald Trump-aligned Republicans. Breyer became the embodiment of the bad kind of older Democrat last year. I am not sad to see him go.