I am not discounting the harms and violence that can be wrought when institutionalists cling to idealism. Millions of soon-to-be purged, suppressed, and discounted voters may learn as soon as the next election that the material damage to democracy that can be done by white men doubling down on one-sided idealism is incalculable. So what is to be done about the fact that Mitch McConnell very clearly counts on, and indeed extravagantly exploits, the seemingly naïve institutionalism of Democrats who keep arguing that a return to old norms is possible and desirable? McConnell has no intention of allowing President Joe Biden to replace a liberal justice if Republicans win the Senate next year. It’s McConnell’s court now. Breyer just rents rooms on it.

The alternative to asking a man to publicly renounce his institutional dreams and ideals is to do something bolder than making this fracas about a single seat. Serious discussions of structural court reform, from court expansion to term limits to jurisdiction-stripping, exist outside McConnell’s control, and also outside Breyer’s control. Such proposals reach beyond the current 6–3 supermajority on the court. In much of the public discourse, we treat those reforms like airless, unlikely academic exercises because implementing them would demand the hard work of organizing, messaging, and strategizing, which is precisely what we avoid doing when we pretend the problems of a revanchist court captured by minority interests can be solved by replacing Steve Breyer with another liberal.

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The many Breyer critics who are now laboring to persuade him that the court is in fact political, and that his choice to remain on the court is also in fact political, and that everyoneknows this except him, need to recall this: Breyer is not susceptible to political pressure because he does not see himself as behaving politically. As he said in a CBS interview in 2015 when Ruth Bader Ginsburg was being pressed to step aside, a justice’s “job is to treat administrations not as political entities, that you favor some politician or you disfavor another politician.” That is why he won’t step aside, and it is also why Breyer and Ginsburg opposed court expansion. But it doesn’t ultimately matter what Breyer thinks about court expansion. The court doesn’t decide that because, as is the case with many reform proposals, these are political and not judicial matters. And there are serious people positing serious solutions for that problem. They are the ones whose political ideas about a captured judiciary should be acted upon.

Replacing a liberal justice with another liberal justice on a 6–3 court is important, but it’s also small ball. If we do (or don’t) want justices to time their own retirements in exceedingly political ways, there is a way to fix that: implementing mandatory retirement ages or 18-year terms. That is all stuff Congress can fix if there is a public will to do so. The work is to build the public will to do so. Which means it may be time to let go of the weird learned helplessness around the courts and acknowledge that although it is easier to be angry at the justices than it is to fix the courts, it is much less effective to do it that way. In fact, it’s a concession to the wrongheaded premise that we all live at the sufferance of Mitch McConnell, Donald Trump, and the Federalist Society. That isn’t a concession anyone should be prepared to make. And that is the battle we should be engaging in.

• Constitution
• Mitch McConnell
• Supreme Court
• Stephen Breyer
• Judiciary