Oklahoma State University – Oklahoma City
American Government POL 1113-20470
Spring 2022
Lecture Notes #13
Contents: cover materials in Chapter 13 – The Courts
American Government
Lecture Notes #13
The U. S. Supreme Court, which typically attracts only modest attention from the American public, is
about to occupy the national spotlight with the possibility of a history-making change among the court’s
justices and a series of highly anticipated rulings on matters ranging from abortion to gun policy.
The court enters this pivotal period with its public image as negative as it has been in many years, as
Democrats – especially liberal Democrats – increasingly express unfavorable opinions of the court.
In a national survey by Pew Research Center, 54% of U.S. adults say they have a favorable opinion of the
Supreme Court while 44% have an unfavorable view. The survey was conducted before Justice Stephen
Breyer announced his retirement from the court and President Joe Biden reiterated his pledge to
nominate the first Black woman to the Supreme Court to replace Breyer.
Justice Stephen Breyer will be the first person to tell you, with a straight face, that the Supreme Court is
an apolitical body that decides the nation’s most pressing legal controversies without regard to ideology
or partisan politics. He truly stands by this: In his telling, the rule of law is the real guide. He wrote a
whole book about it—an ill-timed, pamphlet-length treatise that arrived just as many of those who put
Joe Biden in the White House began to clamor for Breyer’s retirement. These demands were as
pragmatic as Breyer’s own judicial ethos: The new president had—has—a razor-thin margin to confirm
his replacement in the Senate, which skews octogenarian just like the sitting justice. And God forbid
something happened to one of those Democratic senators, squandering yet another vacancy to Senate
majority leader in waiting Mitch McConnell, who knows a thing or two about blockading Supreme Court
nominees.
Last Monday, Senate Minority Leader Mitch McConnell made clear that if Republicans recapture the
Senate next year, they would likely reject any Supreme Court nominee that President Biden put forward
in 2024. This position is consistent with McConnell’s stance after the death of Justice Antonin Scalia, in
2016, when he prevented President Barack Obama from filling the seat. (About the possibility of the
Senate confirming a nominee in 2023, McConnell was noncommittal.) His comments increased the
pressure on Justice Stephen Breyer, who is eighty-two, and who many progressive activists hope will
retire this year, before the midterms. But Breyer has indicated that he believes the timing of his
retirement should not be dictated by politics. Judges, he stated at a lecture in April, “are loyal to the rule
of law, not to the political party that helped to secure their appointment.”
By law, Supreme Court appointment is explicitly political, involving nomination and appointment by the
president “with the Advice and Consent of the Senate” (U.S. Constitution, art. 2, sec. 2). But law dictates
no role for presidents, politics, or public scrutiny in selecting the times at which justices vacate the
Court: except in cases of treason, bribery, or other serious crimes, justices leave office only by death, or
when they themselves, alone and individually, resign. Nonetheless, some observers have long asserted
