January 27, 2022

Justice Breyer Retiring

Justice Stephen Breyer, a devoted pragmatist and the senior member of the Supreme Court’s liberal wing, will retire from the court at the end of the 2021-22 term… His retirement opens the door for President Joe Biden to fulfill a campaign promise and nominate the first Black woman to the Supreme Court.” SCOTUSblog

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From the Left

The left praises Breyer’s record, and calls on Biden to honor his pledge to nominate a Black woman.

“Because constitutional pragmatism is hard to sum up on a bumper sticker, and because it requires balancing competing values that sometimes clash, Breyer’s greatest influence may have been behind the scenes at the Supreme Court. He tried throughout his tenure to encourage compromise between the conservative and liberal wings of the Court, forging an alliance of centrists anchored first by Sandra Day O’Connor and then by Chief Justice John Roberts…

“The fact that Roberts shared Breyer’s commitment to preserving the Court’s institutional legitimacy by avoiding 5–4 splits along partisan lines gave Breyer and his similarly pragmatic colleague Elena Kagan an important role after O’Connor’s retirement shifted the balance of the Court to the right…

“Perhaps their most notable success was the first Affordable Care Act case, in which, according to the journalist Joan Biskupic, Breyer and Kagan ‘were willing to meet [Roberts] partway.’ After Roberts changed his initial vote, which had been to strike down the individual mandate of the ACA, Breyer and Kagan changed their initial votes, which had been to uphold the requirement that states would lose federal funding unless they extended Medicaid coverage to people near the poverty line… [With Breyer’s upcoming retirement] the country moves into a more ideologically divided future.”
Jeffrey Rosen, The Atlantic

“Breyer was romantic, perhaps to the point of self-delusion about the court, but he has been anything but a fantasist in his nearly three decades of judicial work on that body. He focused on mundane details of the administrative state—a field too arcane and boring for most judicial big shots—because he is a passionate believer in the government as an entity that exists to solve problems in workable and efficient ways…

“He thinks about cost/benefit, pragmatic solutions in a manner that is almost entirely absent from the thought processes of the current supermajority, that is so in love with a centuries-old mythology of government and power that it can be blind to exigent climate health and environmental reality…

“And while Breyer was possibly a hopeless romantic—right to the bitter end—about the need for civics, cooperation, mutual respect, and dignity on the bench, he has proved to be the most realistic about assessing the moment in which we now find ourselves… That the justice for whom the notion of constitutional and judicial ‘hardball’ has always been anathema has just ended his Supreme Court career with the most hardball Supreme Court retirement in recent history speaks volumes about the current moment, even if it does so in the spaces between the words he speaks aloud.”
Dahlia Lithwick, Slate

Regarding Biden’s pledge, “It’s about diversity of experiences on the bench to ensure a robust set of perspectives and debate, and it matters. Remember that it was Justice Sandra Day O’Connor, the first woman appointed to the Supreme Court, a Ronald Reagan appointee, who penned the 1982 opinion in Hogan v. Mississippi, which struck down that state’s sex-segregated public nursing schools. It was a 5–4 opinion, and O’Connor wrote that states may not ‘close entrance gates based on fixed notions concerning the roles and abilities of males and females.’…

“We need the experiences of the people who look like this country, and that has been sorely lacking on the bench. Consider access to reproductive health. Black women are more likely to have unwanted pregnancies, are more likely to die from pregnancy-related conditions, and are less likely to have decision-makers they encounter who know and understand not only that this is so but why it is so. Biden needs to deliver on his promise.”
Maya Wiley, New Republic

From the Right

The right is generally critical of Breyer’s record, and criticizes Biden’s pledge to nominate a black woman.

The right is generally critical of Breyer’s record, and criticizes Biden’s pledge to nominate a black woman.

“Democrats have not sent a genuinely heterodox justice to the Court since Byron White was appointed by John F. Kennedy. Breyer’s own career illustrates the limits of what a ‘moderate’ liberal looks like. He was occasionally sensible in business cases and matters of low political salience, and to his credit, he voted to strike down the most coercive aspects of Obamacare’s Medicaid expansion. But that was about it…  

“Like Ruth Bader Ginsburg, appointed the previous year by Bill Clinton, he was sold as a moderate almost entirely on the grounds that he would not impose a knee-jerk objection to the death penalty. But on the Court, Breyer became a single-minded crusader to use every available argument to hobble capital punishment, no matter how disconnected those arguments were from the text and history of the Constitution. He was a reliable and invariable vote for abortion, same-sex marriage, and other liberal and progressive social causes.”
The Editors, National Review

“Depending upon who Joe Biden picks and how the nomination process goes, I could see the administration enjoying a few weeks of good press coverage – which could actually hurt Democrats in the long run… Biden and his team might start to think they’ve scored a big win, righted the ship, endured the worst of the storm, and so on. But other than satisfying some progressive activists, replacing Stephen Breyer with a new, younger, like-minded justice won’t have done much…

“Appointing nominees to the nation’s highest court is an important duty, but the Supreme Court isn’t really what’s bothering Americans right now… Most Americans are likely to yawn or nod and then say, ‘great, but I can’t afford as much as I used to, and it costs an arm and a leg to fill up my tank, and the stores don’t have the products I’m used to seeing there, and every business I walk into is short-staffed, and…’ It will be just another case of Joe Biden’s priorities not matching the electorate’s priorities.”
Jim Geraghty, National Review

Regarding Biden’s pledge, “Mr. Biden could have selected a black woman for the court while maintaining, as universities do, that he would consider all possible candidates on the totality of their records. He wanted to go beyond other candidates and expressly pledge to apply what is by definition a discriminatory threshold criterion. It was a pledge meant to blunt criticism from other Democrats…

“Mr. Biden is now going to create one of the more jarring and incongruous moments in the history of the Supreme Court. This fall, in the Harvard and University of North Carolina cases, the justices will hear arguments that the use of race in admissions is unlawful discrimination. One of them will have gained her seat in part through exclusionary criteria of race and sex. Justice Powell declared in Bakke that ‘preferring members of any one group for no reason other than race or ethnic origin is discrimination for its own sake.’ By keeping his 2020 pledge, Mr. Biden will engage in discrimination for his own sake.”
Jonathan Turley, Wall Street Journal

“When the last three conservative-oriented justices were nominated by President Trump, many Republicans insisted that the central question should always be whether the candidate is competent and qualified. Thus, as long as those two conditions are met by Biden in his selection of Breyer’s replacement, Republican senators would be wise to abide by their own stated standards and not oppose the nominee…

“It is a given that Biden will pick someone who is a reliable liberal and a progressive theorist in the mold of Breyer. However, it is worth remembering that this will not alter the current composition of the Supreme Court.”
Gregg Jarrett, Fox News

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