Can Biden flip the Supreme Court? President handed opportunity as Justice Breyer to retire

Joe Biden’s Supreme Court policy discussed by experts

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Today Justice Breyer, 83, said he would keep his position until the Supreme Court concludes its term in June. His departure would leave the chamber with eight justices, one short of the nine required by law. Mr Biden is the one who chooses Mr Breyer’s replacement, allowing him to extend his presidential influence through the court’s doors.

Can Joe Biden flip the court?

The Supreme Court consists of one Chief Justice of the United States and their Associate Justices.

The Judiciary Act set the number of justices required at nine in 1869, and this has remained the case since.

Altogether, the justices can decide the country’s legislative framework by ruling on landmark cases and striking down statutes (including those issued by the President) that conflict with the US Constitution.

Whenever one justice dies or retires, the President must choose their successor.

Over the years, the court has split down ideological lines as presidents choose the candidate that meshes best with their administration.

The court is, at present, heavily weighted in favour of the Republican Party.

Six of the nine, including the Chief Justice John Roberts, are Republican appointees.

Donald Trump swayed the scales in his party’s favour during his 2017 to 2021 term, overcoming a 5-4 split by introducing Brett Kavanaugh and Amy Coney Barrett.

Mr Biden now has an opportunity to introduce a justice of his own, but it won’t flip the scales.

Justice Breyer entered the court in 1994 at the behest of Bill Clinton, replacing his Republican predecessor Harry Blackmun.

Replacing Justice Breyer, therefore, will not flip the scales, as Mr Biden is replacing one Democrat appointee with another.

But the act is more significant than it may appear, as on paper, it should guarantee a Democratic justice for longer.

By retiring under Mr Biden, Justice Breyer prevents Republicans from extending their lead, at least for now.

If he had chosen to retire under another administration, a potential Republican president would have added a candidate of their own.

Under this eventuality, only two of the nine justices would lean Democrat, meaning left-leaning legislation might face an uphill battle in the court’s halls.

Mr Biden must now search for a viable replacement, and the President has already indicated whom he would like in the role.

While debating rivals during the 2020 Democrat primary race, he said he was “looking forward to making sure there’s a Black woman on the supreme court”.

Jen Psaki, his press secretary, has since confirmed he “certainly stands by” that statement.

Whoever he chooses will have to receive approval from the United States Senate, which is currently struggling to reach a consensus on other issues.

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