Who would have thought Justice Breyer was MAGA?

Earlier this week, retired Supreme Court Justice Stephen Breyer penned an op-ed in The New York Times about friendship among the court’s justices. And about collegiality.

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Reading the piece quickly, a person might be inclined to regard Breyer’s op-ed as “well meaning” or at least “harmless” drivel. We’re clearly supposed to think, how nice, how quaint! Why can’t we all just get along the way the justices do?

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The Roberts court is a Moloch set on devouring the rights of women, people of color, and the LGBTQ community, while preserving the rights of mass shooters to amass deadly arsenals, but Breyer wants us to know that “in my 28 years on the court I did not hear a voice raised in anger.”

Why the hell not? Why weren’t you, Steve, sitting there screaming at your conservative colleagues, or asking everyone who would listen to stop your “friends” from hurting people? Why do you think intellectual detachment in the face of active horror is a virtue, when it’s more like a sin? Why do you think the loss of public decorum is a bigger threat to the Supreme Court’s institutional standing than its self-inflicted loss of ethics, impartiality, and accountability?

[...]

Breyer works overtime to try to humanize the justice[s]—to get people to see them as regular people, not nuclear weapons deployed against fundamental rights. As columnist Hayes Brown explains, the “core” of Breyer’s essay “emphasiz[es] the humanity of justices who are more than willing to de-emphasize the humanity of others in their decisions.” Breyer’s task would be a lot easier, however, if the justices themselves treated people as human beings, instead of mere pawns in their ideological wars.

  Elie Mystal @ The Nation

...but hey, do what you want...you will anyway.

Justice Stephen Breyer's last day on the court is today

Breyer, who had announced his retirement in January, sent a letter to President Joe Biden on Wednesday confirming that he will leave the high court as its current term ends on Thursday.

“The Court has announced that tomorrow, beginning at 10 am, it will hand down all remaining opinions ready during this Term. Accordingly, my retirement from active service… will be effective on Thursday, June 30, 2022, at noon,” Breyer wrote.

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[Ketanji Brown] Jackson will join a heavily conservative court, where the liberal minority has been on the dissenting side in most major contentious cases.

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The court’s next term is set to start early in October.

  alJazeera

And, of course, today's decision on the EPA's authority was to limit it.

The Supreme Court on Thursday issued a decision limiting the power of regulatory agencies within the federal government, saying the Environmental Protection Agency overstepped its authority in 2015 when it tried to limit greenhouse-gas emissions from power plants.

West Virginia led a coalition of Republican-leaning states and coal producers that asked the Supreme Court to weigh in and clarify the limits of the Environmental Protection Agency’s authority, raising broader questions about how far the regulatory authority of federal agencies extends. The coalition said powerful and wide-reaching policies should come from Congress, not agency-level regulators.

  WSJ

Come November, vote for more Democrats, especially to the Senate.

Surprisingly, the Court allowed Biden to end Trump's "Remain in Mexico" policy. Next session, they will take up cases about voting districts in Louisiana and Alabama.

UPDATE:

Breyer's retirement speculation

I've been listening to and reading opinions about why Breyer decided to retire, and one of the ones I think might be closest is that he saw the conservatives taking two cases that were already settled law in order to reverse them - abortion and affirmative action - and he didn't want to be there for it.

Let the opining begin

Justice Stephen Breyer is retiring. We all understand that he's doing so in order that Joe Biden can get a liberal judge on the court while the getting is good. We also understand that Trump's nominees were not only ultra-conservative, they were young in order that there would be ultra-conservatives on the court for years to come. We also all understand that the Supreme Court is political, regardless of claims to the contrary.

The Washington Post has published an editorial opinion about how Biden should handle this situation. Please recall that Biden ran on the promise that if he got a chance to nominate a justice it would be a black woman.

From the Post:  

Justice Stephen G. Breyer will retire at the end of the Supreme Court’s current term, concluding a nearly three-decade career as one of the nation’s top judges — and giving President Biden a rare chance to shape the judicial branch. Mr. Biden should resist partisan pressure to place the youngest, most ideologically strident judge on the high court. Instead, he should pick the best candidate for the job.

The first and foremost qualification — a commitment to judicial independence — is the opposite of what many progressive activists desire.

  WaPo

I highly doubt it's the opposite of what they desire. One wonders: did the Post offer the same opinion when Trump nominated any of the three ultra-conservatives during his one term? I'm not going to research that. I'm going to hope they did.

Mr. Biden has himself suggested another reasonable consideration: diversity, pledging during his presidential campaign to nominate a Black woman for the job. This would be a welcome first, and there are well-qualified Black women on the federal bench whom he could promote. But the president also should not feel restricted to the pool of candidates serving on appeals courts, from which every sitting justice but one hails. Some of the nation’s best justices traveled different paths to the court.

For their part, Republicans should give Mr. Biden’s pick a fair shake. This might seem like a fantasy. The hardball they played in recent years to force a 6-to-3 conservative court majority did more to poison the judicial nomination process and politicize the court than any act since President Franklin D. Roosevelt tried to pack it. They would harm the country even more if they now condemned a qualified Black female nominee as a radical.

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The nation’s leaders should consider ways to reduce the high stakes of any single Supreme Court pick and cut the element of luck that determines which president gets to decide the court’s composition. Imposing 18-year term limits would do both. Along with Mr. Biden’s nominee, lawmakers should consider this idea with open minds.

That is absolutely right. Term limits are obviously needed. On the other hand, there's an even better solution: floating number of justices. Perhaps combine that with term limits.

Also, I'm not too concerned about Republicans giving Biden's pick "a fair shake."  They have a whopping majority of their idealogues on the bench.  Even if Roberts - or rarely Kavanaugh - vote in a non-idealogical way, it would take both of them at the same time to side with the "liberals" to thwart a conservative outcome, and that's highly unlikely to happen.  When it comes to things really important to Republicans - abortion, immigration and corporate power - there's no question which way the Court will go.  They can afford to look as though they're not obstructionists on this vote.

At any rate, it's a good idea to look at the Post's op-ed from the view of a non-white person.

Michael Harriott has a long Twitter thread doing just that. He begins...

Continue reading.

...but hey, do what you want...you will anyway.

UPDATE:

UPDATE:

Finally!

On the campaign trail, Biden vowed that if he were to get a vacancy he would fill it with an African American woman, which would represent a historic first for the high court. Potential candidates include Judge Ketanji Brown Jackson, 51, who was confirmed last year to the powerful DC-based appellate court. She once served as a law clerk for Breyer, and also worked as an assistant federal public defender and served on the US Sentencing Commission.

Another possibility would be Justice Leondra Kruger, 45, who serves on the California Supreme Court and is a veteran of the US Solicitor General's office.

  CNN

Want to bet whether the Senate has a hard time confirming any Joe Biden nominee?

UPDATE 1/27:

More reason for Breyer to retire

He's lobbing lame shit across the net.

...but hey, do what you want...you will anyway.

Breyer needs to step down NOW

The debacle in Afghanistan (plus the census gerrymandering to come) has most likely handed the GOP the Senate and probably the House as well in 2022. If the Dems want to have any victories at all, they've got two years to win them.

[Supreme Court Justice Stephen] Breyer, who at 83 years old is the oldest member sitting on the court, has been cagey about any potential retirement plans in the face of a political pressure campaign to get him to step down while Democrats control the White House and the Senate.

In an interview with the New York Times timed to the release of his forthcoming book, Breyer indicated he is still weighing his decision.

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Breyer also expressed reservations about proposals to dramatically alter the Supreme Court, such as expanding the number of justices as some progressives have suggested. The justice said proponents should “think twice, at least,” before such an undertaking.

“If A can do it, B can do it. And what are you going to have when you have A and B doing it?” he said.

Breyer said his concern is that such machinations risk undermining the court’s legitimacy in the eyes of the public.

  Politico

Read the room, pal. That's already been done.

Breyer also signaled that he did not want to follow in the path of Scalia or Justice Ruth Bader Ginsburg, both of whom died while serving on the Supreme Court in recent years. Those vacancies immediately became bitter political battles that were ultimately won by Republicans and shifted the ideological balance of the court to the right.

“I don’t think I’m going to stay there till I die — hope not,” Breyer said.

We ALL hope not.

...but hey, do what you want...you will anyway.

Wake up Democrats

This is a nice write-up about Levin.  But I need his death to be a wake-up call to Democrats.  Levin retired from the Senate in 2014, so the Dems haven't lost their slimmest of slim margins in that body.  But there are a lot of old ones still there.  While an accident or illness (or crazed Trump supporter) could claim the life of anyone, old age is just piling on the probability.  Let's hope this is a reminder to them all that they have one chance to save democracy from the GOP, and they don't have any time to waste doing it.  I'm not feeling optimistic.

And, while I'm on my soapbox, there is an urgent need for court reform, to include the Supreme Court.  Holy cow, Breyer could well croak in a GOP presidency if Dems in Congress haven't done a thorough job on protecting voting rights, something that has to be done yesterday to avoid losing ground to GOP gerrymandered state districts.  He's too fond of himself and his role as senior leftist on the court to retire during this probably short window of Dems holding the other two governmental branches to put the country first.  And yes, that same thing applied to RBG.  Her refusal to step down during Obama's presidency, even though her health was worsening, got us a 6-3 conservative court. Egos will be the death of democracy.

...but hey, do what you want...you will anyway.

Will he or won't he? - Part 2

Okay, I'm back to the reality that Breyer isn't going to resign.  Here's more of the story....

...but hey, do what you want...you will anyway.

Will he or won't he?

Supreme Court Justice Stephen Breyer told CNN in a new interview that he is undecided on retirement.

The 83-year-old justice said “no” when CNN legal analyst Joan Biskupic asked if he has decided when he will retire.

He also detailed two reasons that would contribute to any decision to leave the court.

"Primarily, of course, health," Breyer said. "Second, the court."

  The Hill

Is he just saying that to get people to lay off the pressure, or is he actually considering it?

I would have bet on the former, but who knows?

...and hey, do what you want...you will anyway.

UPDATE 1/26/22:

UPDATE:  OK, yeah, he's not going anywhere.