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.

Law & Courts 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

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
Student Achievement Webinar
The Relationship Advantage for Attendance, Engagement, and Achievement
Relationship-building goes beyond back-to-school. Get practical ideas from district leaders and educators to strengthen student connections.
School & District Management Webinar EdMarketer Quick Hit: Build Campaigns That Engage K-12 Leaders
We’ll share what’s resonating with Education Week’s K-12 audience based on user behavior across platforms and other proprietary data.
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
Assessment Webinar
Measuring What Matters: How District Leaders Are Redefining Student Assessment
In this panel discussion, district leaders and systems experts will examine the gap between the outcomes we want and the systems in place.
Content provided by Otus

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

Law & Courts Trump Says Title IX Excludes Trans Girls. The Supreme Court Could Weigh In Next
It's the flip side of a recent U.S. Supreme Court decision upholding state laws that bar transgender girls.
7 min read
Becky Pepper-Jackson prepares to throw a discus Tuesday, April 7, 2026, at Bridgeport High School in Bridgeport, W.VA.
Becky Pepper-Jackson prepares to throw a discus on April 7, 2026, at Bridgeport High School in Bridgeport, W.Va. Jackson's challenge of a West Virginia law barring transgender girls from girls' athletic teams ended up before the Supreme Court, which upheld the state's law. Now, the court could take on the question of whether Title IX requires that transgender athletes be excluded from teams that match their gender identity.
John Raby/AP
Law & Courts Supreme Court Rejects Appeal Over School's Ban of 'Let's Go Brandon' Sweatshirts
The justices left in place a lower court ruling that schools can ban the phrase over its veiled vulgarity.
1 min read
A spectator wears a Let's Go Brandon shirt in the stands during the first half of the Hula Bowl NCAA college football game, Jan. 15, 2022, in Orlando, Fla.
A spectator wears a Let's Go Brandon shirt in the stands during the first half of the Hula Bowl NCAA college football game, Jan. 15, 2022, in Orlando, Fla.
Phelan M. Ebenhack/AP
Law & Courts Ten Commandments in Classrooms: 'Passive Display' or Part of the Curriculum?
Five states now have laws that require or authorize Ten Commandments displays in public schools.
9 min read
A Ten Commandments poster is seen with boxes of others before they were delivered to local public schools in New Braunfels, Texas, Monday, Nov. 17, 2025.
A Ten Commandments poster is seen with boxes of others before they were delivered to local public schools in New Braunfels, Texas, on Nov. 17, 2025. Texas is one of four states that now require the commandments be displayed in public school classrooms.
Eric Gay/AP
Law & Courts Federal Court Ruling Paves Way for Jewish Charter School in Oklahoma
A federal judge cleared the way for a Florida-based Jewish charter school network to open in the state.
Lenzy Krehbiel-Burton, Tulsa World, Okla.
•
4 min read
WASHINGTON, DC - JANUARY 10: (L to R) Montana Attorney General Austin Knudsen, Oklahoma Attorney General Gentner Drummond, Missouri Attorney General Andrew Bailey and Frank O. Bowman III, professor emeritus of law, University of Missouri School of Law arrive to testify before a House Homeland Security Committee hearing titled "Havoc in the Heartland: How Secretary Mayorkas' Failed Leadership Has Impacted the States," at the U.S. Capitol on January 10, 2024 in Washington, DC. House Republicans have started their hearings into impeaching President Biden's Secretary of Homeland Security, Alejandro Mayorkas.
Oklahoma Attorney General Gentner Drummond, second from left, was a defendant in a lawsuit from the Ben Gamla Jewish Charter School Foundation challenging a decision from the state's charter school authorizing board that denied the group's bid to open a charter school.
Kent Nishimura/Getty Images