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Biden's next Supreme Court nominee not likely to change its rightward push

Breyer's retirement provides a boost and a distraction from Biden's slide in popularity over the last five months during surges in COVID-19 cases and deaths and Americans' frustration with the pandemic's economic toll.

U.S. President Joe Biden speaks about Supreme Court Justice Breyer as he hosts CEOs at the White House in Washington
U.S. President Joe Biden reacts to questions about U.S. Supreme Court Justice Stephen Breyer after it was reported Breyer will retire at the end of the court's current term, as he hosts chief executives of major U.S. companies at the White House in Washington on January 26, 2022.
KEVIN LAMARQUE/REUTERS
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WASHINGTON — President Joe Biden can make history by appointing the first Black woman to the U.S. Supreme Court to succeed the retiring Justice Stephen Breyer , but replacing one liberal with another won't change the aggressively conservative court's trajectory.

The court has a 6-3 conservative majority bolstered by three appointments made by former Republican President Donald Trump. The new majority has recently flexed its muscles by taking up major cases that could curb abortion rights, expand gun rights and bring an end to the consideration of race in university admissions.

For Democrats, Breyer's retirement provides a boost and a distraction from Biden's slide in popularity over the last five months during surges in COVID-19 cases and deaths and Americans' frustration with the pandemic's economic toll. Opposition by two conservative Democratic senators also stalled a spending proposal that Democrats hoped would energize voters ahead of the Nov. 8 congressional elections.

Now the focus can be on the Biden White House's goal of diversifying the courts and appointing liberal judges to counteract Trump's appointments.

Biden's chance to pick a Supreme Court justice gives the White House an opportunity to tell a positive story, said Kyle Kondik, a political analyst at the University of Virginia's Center for Politics.

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"It's better than what the White House has had to deal with lately," Kondik said.

Black women judges such as Washington, D.C.-based federal appeals court judge Ketanji Brown Jackson and California Supreme Court Justice Leondra Kruger are among those likely to be in contention.

Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing in Washington
Ketanji Brown Jackson, nominated to be a U.S. Circuit Judge for the District of Columbia Circuit, testifies before a Senate Judiciary Committee hearing on pending judicial nominations on Capitol Hill in Washington on April 28, 2021.
POOL/REUTERS

TICKING CLOCK

There is a narrow window to replace the 83-year-old Breyer. In November's elections, Republicans could regain control of the Senate. The chamber is tied 50-50, with Democrats holding majority thanks to Vice President Kamala Harris' deciding vote.

The situation is different at the Supreme Court building across the street from the Capitol, where a new liberal justice can refresh the liberal wing but is likely powerless to stop the trend of conservative rulings.

On major, politically-divisive issues, "Justice Breyer has been a pretty reliable vote for how you’d expect a Democratic-appointed justice to vote on those issues, and we could expect someone Biden nominates would vote the same way," said Kelsi Brown Corkran, a Supreme Court litigator at Georgetown University Law Center. Biden’s appointment will mean "probably very little" for the court in terms of its overall outcomes and direction," she added.

The abortion and guns cases before the court will be decided before Breyer is expected to step down at the end of the current term, which is usually the end of June. The court's conservatives seem willing, in a case from Mississippi, to undermine or even overturn the landmark 1973 Roe v. Wade ruling that legalized abortion nationwide and, in a case from New York, expand the right to carry firearms in public, based on oral arguments late last year.

The new justice, if confirmed by the Senate, would likely be on the bench for the start of the court's next term in October, when it will be preparing to hear the university admissions case. As with the abortion and gun cases, if the conservative justices all vote in lockstep, the liberal justices have no leverage.

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"The members of the six-justice conservative majority know what they think. A new voice on the other side is unlikely to make them rethink their views," said Carolyn Shapiro, a professor at Chicago-Kent College of Law, who served as a law clerk under Breyer.

California Supreme Court Justice Leondra Kruger is seen in an undated photo
California Supreme Court Justice Leondra Kruger is seen in an undated photo.
CALIFORNIA SUPREME COURT via REUTERS

CAFETERIA COMMITTEE DUTY

Although insiders often say that a single change on a nine-justice court changes the court as a whole, junior justices generally have to wait before having a major impact.

Traditionally, initial tasks included serving on the court cafeteria committee and answering the door if someone seeks to enter the justices' private conference, where they talk about how they plan to vote in cases and which new cases to take up. The junior justice also speaks last at those meetings.

The new appointee could make waves outside the court, where the first Black woman justice would be a role model for future generations and part of an all-woman liberal minority on the bench along with Justice Elena Kagan and Justice Sonia Sotomayor. The court, with conservative Justice Amy Coney Barrett, would have four women justices serving together for the first time.

Chicago-Kent's Shapiro said justices in the minority can also make a broader case to the public that can over a longer period help shape the law, as conservative Justice Clarence Thomas and the late liberal Justice Ruth Bader Ginsburg have done at times.

"They can have tremendous influence that way," Shapiro said.

(Reporting by Lawrence Hurley, Andrew Chung and Jason Lange; editing by Scott Malone and Grant McCool.)

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