Stephen Breyer's Retirement 'Keeps the Court in Headlines' for Midterms Season

Supreme Court Justice Stephen Breyer's impending retirement will keep the Court in the public conversation heading into the midterm election season but likely won't have as big an impact on voters as a decision on Roe v. Wade.

Breyer, one of the Court's more liberal justices, officially announced his retirement at the White House on Thursday. His departure at the end of the term provides President Joe Biden with the opportunity to put forth his nominee before Democrats face the possibility of losing their narrow majorities in both chambers of Congress.

On Thursday, Biden described the task of nominating a justice to the Court as "one of the most serious constitutional responsibilities a president has." But political science experts say that while Biden's nominee will likely be historic—the president has vowed to place the first Black woman on the Court—that choice won't shift its political balance.

"Biden's replacement of Breyer will have minimal immediate short-term impact on the Court," Thomas Keck, a political science professor at Syracuse University's Maxwell School of Citizenship and Public Affairs, told Newsweek. "There will still be a 6-3 conservative majority."

Stephen Breyer 2022 midterm elections
Supreme Court Justice Stephen Breyer's impending retirement is expected to keep the Court in the public conversation ahead of the midterm elections this fall. Above, President Joe Biden looks on as Breyer speaks about his upcoming retirement on Thursday. Drew Angerer/Getty Images

Biden's opportunity to nominate an associate justice comes after former President Donald Trump placed three conservative justices on the bench. E.J. Fagan, an assistant professor at the University of Illinois at Chicago's Department of Political Science, pointed to the justices' ages—Breyer is the oldest at 83, with Associate Justice Clarence Thomas 10 years behind him and Associate Justice Amy Coney Barrett the youngest at 50. Fagan said it is possible the Supreme Court will retain its 6-3 balance for some time.

"The three Trump nominations all had that air [of] changing the status quo," Fagan said. In contrast, Fagan said, the process to confirm Breyer's replacement will likely be "much more routine."

With Biden unable to flip the balance of the Court with his nominee, both Keck and Fagan said it is likely Republicans will allow Biden's nominee to move through the confirmation process without much pushback. A new Democrat-appointed justice would give the Democratic Party a win ahead of the midterms, and it will prompt public conversation about the Court in the months leading up to Election Day.

Despite that attention, Biden's task of replacing one liberal justice with another in the Court's minority means Breyer's retirement is unlikely to have a significant impact on the midterms. By contrast, Barrett's confirmation in October 2020 secured the Court's conservative majority and motivated voters ahead of the last presidential election.

Keck said the Supreme Court was already set to be in the headlines this year for several decisions expected in the coming months, including its ruling on Mississippi's 15-week ban on abortions. Given the Court's political balance, experts widely expect it to uphold the Mississippi law, which is viewed as a challenge to 1973's Roe v. Wade ruling that legalized abortion.

"Having a Supreme Court nomination fight puts the Court in the headlines even more," Keck said. The Court doesn't tend to be as dominant an issue for Democratic voters as it is for Republicans, Keck said. But watching Biden's nominee go through the confirmation process will serve as a reminder of what's at stake for Democrats, even if the Court's political balance is ultimately unchanged, he said.

"Biden's replacement of Breyer will have no impact whatsoever on this particular case, or any cases in the immediate future, because there are six conservative justices on the Court," Keck said. "But it keeps the Court in the headlines, and it keeps reminding people that we have six very conservative justices on this Court, and they're about to gut Roe vs. Wade, and in June they are going to gut it. It just keeps it more in the front of voters' minds."

Fagan also noted that the Democratic Party is "not mobilized by the Supreme Court in the same way that the Republican Party is."

"I think one exception could be if five justices decide to overturn Roe v. Wade in four months," Fagan said, which he noted could come as Breyer steps down from the bench at the end of the current term.

"Just imagine that both of those news events happen at the same time," Fagan said. "You could imagine that having a very mobilizing effect on Democrats."

Even if events unravel in that way, Fagan said, he believes other issues besides Breyer's retirement will play a larger role in this fall's elections.

"I think other factors will determine the midterms much more than the Supreme Court," he said.