Opinion Blog


Rick Hess Straight Up

Education policy maven Rick Hess of the American Enterprise Institute think tank offers straight talk on matters of policy, politics, research, and reform. Read more from this blog.

Federal Opinion

What Stephen Breyer’s Resignation Means for Education

By Rick Hess — January 31, 2022 2 min read
Image shows a multi-tailed arrow hitting the bullseye of a target.
  • Save to favorites
  • Print

Last week, U.S. Supreme Court Justice Stephen Breyer announced his resignation. The senior member of the court’s “liberal bloc,” Breyer had been appointed by President Bill Clinton back in 1994. President Joe Biden will pick Breyer’s replacement and, absent some extraordinary development, the pick will quickly be confirmed by the Senate’s Democratic majority (and will probably receive a Republican vote or two).

While there’s always a lot of talk when a court seat opens up, it’s unlikely that Breyer’s replacement will have any noticeable impact on the court’s major education-related rulings. Breyer has been consistently left-leaning on hot-button educational questions like affirmative action and school vouchers, and it’s expected that his replacement will hold similar views (or perhaps be a notch or two to his left). The one caveat is that, as Ed Week’s Mark Walsh has reported, Breyer has been notably deferential to school administrators—and there’s no assurance that a progressive replacement will share that impulse.

Some have asked whether the White House’s split with Democratic Sens. Joe Manchin or Kyrsten Sinema could portend headaches on confirmation. It’s not likely. Both have been supportive of previous Biden court nominees, and Manchin (like Republican Sen. Lindsey Graham) has a history of supporting Supreme Court nominees he deems qualified, regardless of ideology. Manchin also said last week that he’s open to supporting a nominee more liberal than he is. So, neither Manchin nor Sinema are likely to be a problem for the president.

The confirmation process has implications for the broader Democratic agenda. The best case for the Biden team is that the nominee is well-received, there’s a smooth confirmation process, the base is pleased and cuts Biden some slack, and the president gets some mojo back. If so, the White House could then try to use that momentum to coax Manchin and Sinema into passing a cutdown version of Build Back Better, with pre-K potentially a big part of that.

But it’s more likely that, even if everything goes well, filling Breyer’s seat will make it harder for the White House to move Build Back Better 2.0 or anything else. Democrats have had trouble getting much done in the 50-50 Senate, and Majority Leader Chuck Schumer has been lambasted by the left and right for his stumbling stewardship. Given that, the nomination and confirmation process is likely to soak up most of the majority’s bandwidth over the next few months, making it tough to hammer out a spending agreement and get the legislative process rolling. Meanwhile, delivering their make-or-break votes for a liberal nominee will put Manchin and Sinema in a position to tell the White House, “I did you a solid. Now back off.”

That means that even a big win on the Breyer seat might not do anything to help the White House move Build Back Better or other spending proposals—including ones that could impact education.

Related Tags:

The opinions expressed in Rick Hess Straight Up are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

Events

School & District Management Webinar Crafting Outcomes-Based Contracts That Work for Everyone
Discover the power of outcomes-based contracts and how they can drive student achievement.
School & District Management Webinar EdMarketer Quick Hit: What’s Trending among K-12 Leaders?
What issues are keeping K-12 leaders up at night? Join us for EdMarketer Quick Hit: What’s Trending among K-12 Leaders?
This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Artificial Intelligence Webinar
Teaching Students to Use Artificial Intelligence Ethically
Ready to embrace AI in your classroom? Join our master class to learn how to use AI as a tool for learning, not a replacement.
Content provided by Solution Tree

EdWeek Top School Jobs

Teacher Jobs
Search over ten thousand teaching jobs nationwide — elementary, middle, high school and more.
View Jobs
Principal Jobs
Find hundreds of jobs for principals, assistant principals, and other school leadership roles.
View Jobs
Administrator Jobs
Over a thousand district-level jobs: superintendents, directors, more.
View Jobs
Support Staff Jobs
Search thousands of jobs, from paraprofessionals to counselors and more.
View Jobs

Read Next

Federal Video Linda McMahon: 5 Things to Know About Trump's Choice for Education Secretary
President-elect Donald Trump plans to nominate former pro-wrestling CEO Linda McMahon to lead the education department.
1 min read
Federal The K-12 World Reacts to Linda McMahon, Trump's Choice for Education Secretary
Some question her lack of experience in education, while supporters say her business background is a major asset.
7 min read
Linda McMahon, former Administrator of Small Business Administration, speaks during the Republican National Convention on July 18, 2024, in Milwaukee.
Linda McMahon speaks during the Republican National Convention on July 18, 2024, in Milwaukee. McMahon has been selected by President-elect Trump to serve as as the next secretary of education.
J. Scott Applewhite/AP
Federal What a National School Choice Program Under President Trump Might Look Like
School choice advocates—and detractors—see a second Trump term as the biggest opportunity in decades for choice at the federal level.
8 min read
President Donald Trump listens during a "National Dialogue on Safely Reopening America's Schools," event in the East Room of the White House, on July 7, 2020, in Washington.
President Donald Trump listens during a "National Dialogue on Safely Reopening America's Schools," event in the East Room of the White House on July 7, 2020, in Washington. He returns to power with more momentum than ever behind policies that allow public dollars to pay for private school education.
Alex Brandon/AP
Federal 5 Things to Know About Linda McMahon, Trump's Pick for Education Secretary
President-elect Donald Trump’s selection, the former CEO of World Wrestling Entertainment has long spoken favorably about school choice.
7 min read
Small Business Administrator Linda McMahon speaks during a briefing at the White House in Washington on Oct. 3, 2018.
Linda McMahon speaks during a briefing at the White House in Washington on Oct. 3, 2018, when she was serving as head of the Small Business Administration during President Trump's first administration. McMahon is now President-elect Trump's choice for U.S. secretary of education.
Susan Walsh/AP