Despite winning some major cases at the Supreme Court, Democrats still feel like they are behind the eight ball.
That sense of desperation is likely to increase.
And a key Supreme Court justice delivered the bad news Joe Biden did not want to hear.
Democrats nervously await the retirement decision by 82-year-old liberal Supreme Court Justice Stephen Breyer.
Bill Clinton nominated Breyer who now serves as the Court’s oldest justice in the liberal bloc.
Democrats such as Alexandria Ocasio-Cortez ramped up a pressure campaign trying to force Breyer to retire because of what happened last fall.
Liberal lion Ruth Bader Ginsburg did not retire when Barack Obama served as president and Chuck Schumer ran the Senate.
When Ginsburg passed away Donald Trump and a Republican Senate majority confirmed Amy Coney Barrett and swung the Court to the right.
In an interview with CNN, Breyer said there were two variables he considers when deciding on his retirement date.
“Primarily, of course, health,” he began before adding, “second, the court.”
Breyer values the Court’s institutional reputation and attacked liberals’ plans to pack the Supreme Court as destructive to the judicial branch’s legitimacy.
CNN’s Manu Raju asked Breyer if he had any immediate plans to step down which elicited a one-word response.
“No,” Breyer answered.
Breyer explained that his status as the most senior liberal justice on the Court “has made a difference to me. … It is not a fight. It is not sarcasm. It is deliberation.”
There is evidence that Breyer is correct.
In a key case the Court heard this term, Breyer helped craft a compromise that enraged conservatives.
The Court held 9-0 that the city of Philadelphia discriminated against the Catholic Social Services by not contracting with the group to provide foster care over the Catholic agency’s opposition to homosexual marriage.
But Breyer swayed Amy Coney Barrett and Brett Kavanaugh to so narrowly tailor the ruling as to render it meaningless.
The Court left in place a 1990 precedent that allows the government to pass laws restricting the free exercise of religion.
Breyer told CNN that his position as the second most senior justice on the bench allows him to speak third – after the chief justice and the most senior member of the Supreme Court Clarence Thomas – when the Court holds conferences on deciding which cases to take up.
“You have to figure out what you’re going to say in conference to a greater extent, to get it across simply,” Breyer stated. “You have to be flexible, hear other people, and be prepared to modify your views. But that doesn’t mean (going in with) a blank mind.”
This may have paid dividends for the left last term.
Breyer most likely enticed Amy Coney Barrett and Brett Kavanaugh to refuse a case of a Christian florist fined by the state of Washington for not producing floral arrangements for a homosexual wedding because it violated her deeply held Christian beliefs.
Democrats only hold 50 Senate seats.
Any health tragedy could put Mitch McConnell in charge of the Senate.
If that happened McConnell would likely block any Biden nominee until after the 2022 midterms to see which party controlled the Senate.
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