Politics is often at play within the judiciary, including the Supreme Court. The recent retirement announcement of Justice Stephen Breyer shows that politics influences the decision-making of many Justices just as much as those appointing them, voting to confirm them, or protesting them in the streets.
Judges are supposed to be fair and impartial. Politics have no place on the bench. While everyone has opinions, judges, more than others, should apply laws equally and fairly when issuing theirs. Yet, this is rarely the case.
In the Supreme Court case that bears my name, McCutcheon vs. FEC Breyer showed his political bias by promoting false political arguments instead of promoting Free Speech as guaranteed by the First Amendment. Rather than consider my case on merit, he chose to ignore the law and rely on his political instincts.
In the dissenting opinion of McCutcheon vs. FEC, Breyer wrote in part, "…today's decision eviscerates our Nation's campaign finance laws, leaving a remnant incapable of dealing with the grave problems of democratic legitimacy that those laws were intended to solve…"
Breyer’s opinion is just that – his opinion - of whatever “democratic legitimacy”, is supposed to be in his eyes. His statements illustrate how so many of our leaders in all branches of government believe more laws limiting free people will solve something.
At this point, it should be abundantly clear that anti-free-speech laws contribute to problems and solve nothing.
Breyer was (and remains) flat wrong. I will not miss his presence on the bench. That said, I worry more about who may replace him. Breyer was, at least, consistent – which you probably cannot find in the radical left today.
The Supreme Court majority thankfully disagreed with Breyer, and, as a result, the marketplace of ideas is thriving with even more candidates and debate (when not censored by cancel culture). Regardless of where you are on the political spectrum, it is wholly American to enjoy a chance to compete and share a message – much to Justice Breyer’s chagrin.
While Justice Breyer’s bias was painfully evident in my case and others, the reasons for his retirement seem to be political. Those confirmed to the Supreme Court enjoy a lifetime appointment. So why retire now?
Justice Breyer can see, as we all do, that President Biden is wildly unpopular. The reelection of Biden is unlikely at best. He also likely senses Democrats will be losing a significant number of seats in the United States Senate during the midterm elections. Getting a nominee with a leftist political bias becomes less likely the longer he waits.
Justice Breyer witnessed how the passing of Ruth Bader Ginsburg allowed President Donald Trump and a Republican Senate the opportunity to replace an unapologetically liberal Supreme Court Justice with the fair Amy Coney Barrett.
If Justice Breyer views the seat he holds on the Supreme Court as “his” instead of "the people’s", he likely wants it going to someone who will carry on a legacy of applying a liberal standard to rulings instead of a fair and impartial one.
By retiring now, Justice Breyer will surely get what he wants. President Biden making the pick, and Vice President Harris breaking any ties in the U.S. Senate, makes progressive nominee all but guaranteed.
Biden proved during the confirmation hearings for Justice Clarence Thomas that he sees the Supreme Court appointees through a political lens – and likely a demographic one too. He does have a history of saying the quiet part out loud. As a result, discussions are already focused on the historic event and the appointee’s demographics, and politics, while omitting qualifications. It is less than fair to anyone who is nominated.
The eventual nomination process, hearings, and confirmation should be an opportunity for allies to show support or for objections to be presented, considered, and debated. We saw a lot of those following Justice Gorsuch, Justice Kavanaugh, and Justice Barrett. However, like in those situations, exchanges will be political, substance-free, and ultimately accomplish nothing.
While the rhetoric may heat up, the process should focus on specifics of the nominee's record, statements, and previous rulings — and not just a political ideology or unfounded outrage.
There is a chance that Breyer’s replacement is a Free Speech advocate – but there are so few of them on the political left these days, I’m not holding my breath.
The actors in the Washington, D.C. political theater will deliver the performance of a lifetime to convince the American people that the new Supreme Court Justice will be fair and impartial. It will take much more than the willing suspension of disbelief to convince anyone that the new appointee will be anything other than a Breyer 2.0 – he wouldn’t want it any other way.
Shaun McCutcheon, a Free Speech advocate, is an Alabama-based electrical engineer and inventor. He was the successful plaintiff in the 2014 Supreme Court case McCutcheon v. FEC.
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