Despite being born into one of the wealthiest families in America, the late Senator Ted Kennedy (D-MA) made his career looking out for the downtrodden and crossing ideological lines to pass some of the most monumental legislation in U.S. history.
In the early 1970s, Senator Kennedy became determined to bring affordable air travel to millions of middle class Americans. At the time, the airline industry was regulated by the Civil Aeronautics Board, a government agency that set minimum airline prices and managed routes to ensure that service existed throughout the United States. With no ability to compete on price, plane tickets were very costly and airlines competed solely on inflight service. While flying the friendly skies it was not uncommon to sit next to an open seat and be served steak sandwiches for lunch.
In an effort to determine how to lower airline prices, Senator Kennedy phoned a young Harvard law professor named Stephen Breyer. Breyer had recently joined the faculty at Harvard Law School following a brief stint as a Special Assistant to the office of the Assistant U.S. Attorney General for Antitrust. Breyer told the Senator that if he was interested in lowering airline prices, he should consider investigating the Civil Aeronautics Board. Breyer believed that airline prices would plunge and service would expand, if the industry was deregulated.
Arguing for deregulation was not a natural fit for the Liberal Lion from Massachusetts; however, Breyer convinced Senator Kennedy that a regulated airline industry resulted in excessive fares and the inefficient use of aircrafts. The Senator was so convinced by Breyer’s argument, that he hired Breyer to organize hearings on Capitol Hill focused on the “consumerist” case for deregulation.
Despite Senator Kennedy facing pushback from labor unions who had supported him his entire career, his call for the deregulation of the airline industry ended up uniting Democrats and Republicans alike. Deregulation appealed to anti-government conservatives and consumer groups who wanted airtravel to be more affordable. And, in 1978, with wide bipartisan support, President Carter signed the Airline Deregulation Act into law.
The deregulation of the airline industry resulted in its spectacular growth. Since 1974, the number of yearly airline passengers has increased from around 207 million, to around 1.1 billion in 2019. In addition, airline fares have dropped significantly since the 1970s. In 1974, the cheapest round-trip flight from New York-Los Angeles that regulators would allow cost $1,442, adjusted for inflation. Today, that same roundtrip flight can be booked for under $300. The tremendous rise in the number of air travelers since the airline industry was deregulated, has spurred thousands of new jobs. Before the pandemic, the U.S. airline industry directly employed around 700,000 Americans and helped drive over $1.6 trillion in U.S. economic activity.
While some air travels likely miss their steak sandwich and tuna tartare, the deregulation of the airline industry has enormously benefited consumers, who can fly virtually anywhere at a reasonable price. Airline deregulation happened because, with the help of Stephen Breyer, both sides of the political aisle realized it was in the best interest of the American people. This focus on improving the lives of everyday Americans, has been a hallmark of the lifetime work of Stephen Breyer.
When President Clinton nominated Breyer to the Supreme Court he said, “Judge Breyer will bring to the Court a well recognized and impressive ability to build bridges in pursuit of fairness and justice.” With this statement, President Clinton was expressing his admiration for Breyer’s ability to apply the law in a way that makes for a more harmonious America by treating everyone equally and with dignity.
Immediately following Clinton’s nomination of Breyer, he received widespread bipartisan support. Senator Strom Thurmond (R-SC) said Breyer was an “excellent choice,” and Senator Kennedy (D-MA) called the nomination “outstanding.” Senator Joe Biden (D-DE), the Chairman of the Judiciary Committee, praised Breyer's "intellect and dedication" to the rule of law and Senator Bob Dole (R-KS) called Breyer “top-notch.”
After a quick week of hearings, Breyer was confirmed to the Supreme Court on July 29, 1994, by a Senate vote of 87-9. Justice Breyer was the last justice to be confirmed by as many as 80 senators.
For the last 27 years, Justice Breyer has taken a pragmatic approach to the law and served with honor. Following the 2019-2020 term, Breyer was ranked as the third-most liberal justice on the court and was in the majority of decisions 77% of the time; more often than four other justices and less often than four other justices.
After the death of Justice Ruth Bader Ginsburg in 2020, Justice Breyer, now 82 years old, became the court’s oldest justice and most senior liberal member. However, shortly after assuming this mantle, and Democrats regaining control of the White House and Senate, far-left liberals began demanding Justice Breyer retire.
In April, the advocacy group Demand Justice began driving a billboard truck around Washington, D.C. bearing the message: “Breyer, retire. It’s time for a Black woman Supreme Court justice. There’s no time to waste.”
Instead of focusing on keeping the Democratic Senate majority and retaining control of the White House, some mean and misguided radical liberals have decided that in order to ensure Breyer's seat is filled with a progressive, they should force him out now, while Democrats control Washington.
Apparently, these extremist progressives need to refamiliarize themselves with the Constitution. The judicial branch of our government was established by Article III of the Constitution and gives Congress great leeway with regard to shaping the structure of the federal judiciary. The Constitution leaves the number of Supreme Court Justices up to Congress and grants Congress the power to establish courts inferior to the Supreme Court. However, the Constitution makes clear that Federal Judges serve until their death or retirement. The only other way to remove a Federal Judge is through impeachment by the House and conviction in the Senate.
The Founding Fathers intentionally made it very difficult to remove Federal Judges so as to insulate them from the passions of the public and allow them to apply the law without political favor. Members of the Judiciary are supposed to be loyal to the rule of law, not a political party and politician.
If a judge retires simply because the political party they are supposedly aligned with is in power, the court appears political and its fidelity to the law comes into question. As Justice Breyer has said himself, “If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.” Is the goal of progressives who want Justice Breyer to reign to diminish the power of the court and prevent the court’s important rulings from being enforced?
A very thinly veiled element of those calling for Justice Breyer to resign, is the assertion that he is old and about to die. Despite Justice Breyer being the ninth-oldest justice in the Supreme Court’s history, there is no evidence that he is in anything but excellent health. Unlike the late Justice Ruth Bader Ginsburg, who battled colon cancer, pancreatic cancer and lung cancer, Breyer has never been reported to have cancer or any other serious illness. Breyer works out with Justice Ginsburg’s former trainer and friends say he loves his job and battling with his more conservative colleagues.
When asked about efforts to force Justice Breyer to resign, White House Press Secretary Jen Psaki said, “[President Biden] believes that’s a decision Justice Breyer will make when he decides it’s time to no longer serve on the Supreme Court.” For good reason, the Biden Administration has made clear that they will not pressure Justice Breyer to retire. Only a few months ago, before he won the Presidency, Joe Biden was the subject of a barrage of press questioning his senility. The New York Times, The Washington Post, Politico, CNN, The Atlantic and The Associated Press asked, in some form or another, whether Joe Biden, at 78 years old, was too old to be President. Do progressive still believe that Biden is too old to be president.
In President Biden’s first 100 days he signed a $1.9 trillion COVID-19 relief bill into law, issued more executive orders than his three predecessors, delivered 200 million coronavirus vaccine shots to Americans from coast to coast, oversaw falling unemployment and thousands of schools reopening for in-person learning.
Instead of rushing to discard those who are in the back half of their life, liberals, of all people, should evaluate others based on their past performance and continued ability to do their job. Forcing out an outstanding Justice who has authored major opinions on protecting abortion rights and calling for the end of the death penalty, as well as ruling in favor of LGBTQ rights time and time again, is cruel and wrong. Those concerned about the direction of the court should consult the remedies provided for in the Constitution, and not try to force out a Justice who is doing an exemplary job and has dedicated his life to his country.
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