Supreme Court

Is Stephen Breyer About To Retire? His Clerk-Hiring Spree Suggests Otherwise.

Progressive activists are pushing the 82-year-old justice to step down.

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"We are now firmly in the window when past justices have announced their retirement, so it's officially worrisome that Justice Breyer has not said yet that he will step down. The only responsible choice for Justice Breyer is to immediately announce his retirement." So declared Brian Fallon, executive director of the progressive activist group Demand Justice. Fallon's outfit has clearly set its sights on the 82-year-old jurist, launching a new pressure campaign last week under the none-too-subtle slogan Breyer Retire.

Is Breyer actually planning to step down anytime soon? Probably not, at least judging by the fact that Breyer just finished hiring a full slate of four clerks for the Supreme Court's 2021–2022 term, which begins in October. Typically, a justice who is nearing retirement does not do so much staffing up for the future.

Of course, Justice Anthony Kennedy did announce his retirement after he hired a full slate of clerks, so there is a recent precedent for Breyer doing the same thing now. On the other hand, as the legal writer David Lat has observed, "I do think Justice Kennedy was especially likely to try and cover his tracks; if Justice Breyer has hired four clerks for OT 2021, I think it's most likely because he expects to be on the Court at that time." Lat, a savvy court watcher, thinks that Breyer's hiring spree means there is now "a 70-30 chance that Justice Breyer remains on the Supreme Court for at least one more Term."

Breyer recently disappointed progressive activists in another big way. In a Harvard Law School speech earlier this month, the justice came out firmly against court packing, telling those who would rejigger the size of the Court for the purpose of gaining a short-term political advantage to "think long and hard before embodying those changes in law."

In my recent feature story, "Don't Pack the Courts," I noted that President Franklin Roosevelt's famous 1937 court-packing scheme failed in large part because so many of his fellow Democrats opposed it. FDR's "most effective adversaries turned out to be members of Roosevelt's own party," I wrote, "such as the legendary progressive jurist Louis Brandeis, who deftly maneuvered behind the scenes to ensure the bill's ultimate defeat. Like so many others at the time, Brandeis was frankly aghast at FDR's blatant power grab."

Perhaps Breyer is gearing up to play the Brandeis role today.

NEXT: Congressional Democrats Want To Vote Themselves Into a Supreme Court Majority

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  1. Democrats must be more worried about the mid terms than I thought.

    1. I think they’re going for broke. They know that if they can’t get permanent control by the midterm, that dream is over for them.

      Until the Republicans go off the deep end and try the same thing.

      1. The outcome: Union of Sovereign States, more or less? If you truly want to live in a woketariat, move your ass to CA or Jersey. If not, live elsewhere.

        1. They know that if they can’t get permanent control by the midterm, that dream is over for them.

          The dream is never over as long as they control the education and accreditation processes. In fact they can go for it repeatedly because they are so close to complete control even showing their hand has no chance of creating enough backlash to matter.

          This is the 85 Bears on the TB 5 yard line. Go for it every time, even if you turn it over on downs TB isn’t going anywhere. In the worst case you get the ball back on their half of the field to try again.

          1. “The[ir] dream is never over”

            I am sure you are right; like negotiating with the Taliban; eventually they are going to rush in and put every heretic to the sword, as soon as they can.

            Are we all willing to live with it? No. So that leaves nullification as one option, Article V convention as another; but regardless there is no way we will all be able to exist under one roof.

            We will do well to maintain a common defense and currency; and that is optimistic.

            1. Who care. The work scum can have all of the generals and cornols, the non woke can keep all the lieutenants and enlisted

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          2. I remember the 85 Bears “going for it” using the unstoppable William “The Refrigerator” Perry for that 5 yard situation. 36 years, damn, has it been that long?

        2. Just like every attempt at communism the proles can’t be free to leave. So relegating them CA or NY or whatever won’t work because as we already know those states are losing population fast

      2. Until the Republicans go off the deep end and try the same thing.

        Republicans don’t have the balls to even discuss anything like this. The last time the Democrats had control of both houses of Congress and the presidency, they rammed their entire agenda through. The last time the Republicans had control of both houses of Congress and the presidency, they barely managed to pass a moderate tax cut after some compromises.

        1. Team R is just politically incompetent. POTUS Trump was right about that part.

          1. Team R is at a knife fight in a back alley, but deludes itself into thinking it’s a cotillion.

        2. Last time the Dems had control of both chambers of Congress and the presidency all they passed was Obamacare. That wasn’t even their entire healthcare agenda, but it ended up being the entirety of their political capital

          Same for the Rs and the tax cuts, it was all the capital they had. Its looking like Biden may have already blown all his capital on the Covid stimulus, but he may have enough for a second shot with the infrastructure bill. I don’t see much else passing

          1. The dems got much more than just Obamacare. I didn’t even follow at the time, but I remember at least hearing about that extra few trillion dollars of “emergency” spending and massive “reforms” to fix everything wrong with the free market gone awry. And that was just the big stuff that made headlines.

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  2. The only responsible choice for Justice Breyer is to immediately announce his retirement.” So declared Brian Fallon

    I bet he said the same thing about Ginsburg during Trump’s term. Right?

    1. LOL

    2. Probably not but I’m damn sure he’d call any Republican who did sexist.

    3. Uh, actually a lot of people on the Left were very upset with Ginsburg over her not retiring.

      1. Really during Trump’s tenure in office? I think you are confusing Obama and Trump; understandable since they are both liars who violated their oaths to uphold the Constitution.

        1. The idea is that Ginsburg should have retired during the first half of the first Obama term.

      2. “The only responsible choice for Justice Ginsburg is to immediately announce his retirement.”

        Point to someone on the left that said that during the Trump administration.

  3. Hoping for today’s malignant narcissists in the democrat party to do the right thing is laughable. They’re sociopathic power brokers.

    1. Projection sure is a helluva drug.

  4. But allowing the Democrats to pack the Supreme Court will give the GOP many years of excuse-making as to why they are powerless to do anything to stem the tide of socialism washing over the country. But by God they sure would try if you would give them some campaign cash.

    1. We must be on the same lists….

  5. Anyone listening to these assholes speaking right now? Apparently the far right is trying to dismantle democracy.

    1. And there’s “Demand Justice”, spouting identity politics!

  6. >>Brian Fallon, executive director of the progressive activist group Demand Justice.

    dude who? lol

  7. They’re going to pack the court with crazies who will rule socialism is a fundamental human right so us proles can’t vote socialism out.

    1. Voting is so 2020 – – – – – – –

      1. You mean 2016

    2. Walk away democrats shall be increasing in numbers. They must. This is getting ludicrous. How about the JenPsaki 180 day commission report. . . Oh! It will be too late.

  8. Roosevelt’s famous 1937 court-packing scheme failed in large part because so many of his fellow Democrats opposed it. FDR’s “most effective adversaries turned out to be members of Roosevelt’s own party,”

    True, but then liberals mattered in the Dem Party. Today there are so few they are irrelevant.

  9. FDR’s court-packing scheme did not fail. We got the New Deal, did we not?

    Breyer like Roberts is understandably concerned about the credibility of the Supreme Court. But it’s not just Democrats changing an arbitrary number from 9 to 13 that threatens that, it’s Republicans stacking the judiciary with ideological crusaders in lieu of appealing democratically to the people. That’s fucked up. There is no legitimacy in pushing an agenda to rewrite law without democratic input using machinations of government in ways they were never intended. Conservatives have been griping about that very thing the entire time I’ve been alive.

    The SC will lose legitimacy all by itself as ideologies in stolen seats pass a radical lunatic policy agenda with no even pretense of respect of precedent. It’s not like it’s a secret plan. The more Breyer insists that the court isn’t a political institution, and the more his individual attitude and ego dictate the future policy direction of the US, without any democratic input in the process, the more he makes the case for the SC being a joke.

    1. No one thinks anything you say is remotely correct.

    2. You think that the left leaning justices are not ideological crusaders?

      RBG, the favorite of everyone on the left right now, was openly so.

      1. Yes, I think the supreme court is a political body and has been for centuries.

        That’s not so big a deal when it does things that the electorate wants. The problem I’m talking about is not necessarily that the court acknowledges politics, but that Republicans get elected via an undemocratic system, who then manipulate the rules to pack courts with ideologues with the express purpose of denying the people their political will and enact not only a theocratic and stupid ideological agenda, but an agenda that further erodes the democratic process! Otherwise they would simply get elected and pass the laws on their own.

        It’s called tyranny, Bub.

        1. Republicans get elected via an undemocratic system, who then manipulate the rules to pack courts

          Who killed off the judicial filibuster?

          1. I’ve never seen much utility in blame.

        2. Well, I don’t think your characterization of the political teams’ behavior is very accurate. And the courts are supposed to be the one branch of government that is not responsive to the will of the electorate. Their job is to interpret and enforce the laws as they exist and to resolve conflicts between laws with the constitution being the supreme law.

        3. >>Republicans get elected via an undemocratic system

          dude what? lol

          1. I suspect he means the electoral college. Which is also how Democrats get elected. Though that kind of ignores the Senate which is (sadly) democratically elected.

    3. it’s Republicans stacking the judiciary with ideological crusaders in lieu of appealing democratically to the people.

      It’s interesting the people most supportive of ideological crusaders whine about others being ideological crusaders. It reminds my of Tyrion claiming the Baratheon daughter is a bastard. Nothing the left wingers say has any relationship to truth at all, it just isn’t a relevant consideration.

    4. Don’t forget the concentration camps for Jap spies.

  10. “The switch in time that saved nine” is the phrase, originally a quip by humorist Cal Tinney,[1] about what was perceived in 1937 as the sudden jurisprudential shift by Associate Justice Owen Roberts of the U.S. Supreme Court in the 1937 case West Coast Hotel Co. v. Parrish.[2] Conventional historical accounts portrayed the Court’s majority opinion as a strategic political move to protect the Court’s integrity and independence from President Franklin Roosevelt’s court-reform bill (also known as the “court-packing plan”), but later historical evidence gives weight to Roberts’ decision being made much earlier, before the bill’s introduction.

    https://en.wikipedia.org/wiki/The_switch_in_time_that_saved_nine

    If the Court stopped striking down FDR’s New Deal policies because of his threats to pack the court–and started finding for them instead–that undermines the argument that the court packing plan failed because so many Democrats opposed it. It may well have been that the reason so many Democrats opposed packing the Court was because the Court stopped striking down FDR’s New Deal policies.

    There may be absolutely nothing to learn from that today apart from the fact that intimidating the Court can be as effective as packing it. This wouldn’t be the first time someone on the present court has squirmed backwards on an issue for fear of protecting the Court’s “integrity”. Staring at you–“penaltax”.

    1. I would have preferred single-payer too.

      1. So what?

        Fuck you.

        1. You’re mad that your sportsball team lost a game. You have no proposal to create a system for universal healthcare delivery in America. If Roberts had killed Obamacare it’s not like the conversation would end. Maybe it would have produced a backlash big enough to swing a few thousand votes to Hillary Clinton. Count your blessings.

          1. “You have no proposal to create a system for universal healthcare delivery in America.”

            It’s called capitalism.

            1. So you’re saying capitalism sucks at its job.

              1. No, I’m saying the current system isn’t free-market capitalistic. But you knew that.

                1. Progressives aren’t worth responding to most of the time, but Tony’s on another level of that. He’s a creationist as far as the economy is concerned, and he thinks the Democrats are God. You can’t have markets unless the government creates them? Why respond to that? I’ve met six-day creationists online who aren’t stupid enough to believe what Tony believes. He’s just a moron, and that’s all.

                  1. He’s been around for such a long time that I consider him a member of the commentariat.

                    1. Trolls are member of the commentariat by definition. He doesn’t care whether he’s wrong or right or why. He doesn’t add anything to the conversation. He’s a part of the picnic like ants and flies are part of the picnic.

                    2. “Trolls are [NOT] members of the commentariat by definition”

                      —-Ken Shultz

                      Fixed!

                  2. So the mirror image of you except I picked the team that believes in science.

                    1. You don’t understand anything about science or critical thinking.

                      You’re a stupid troll.

                    2. Also my team didn’t try to overthrow the United States government in order to save racist Dr. Seuss books or whatever the fuck they were angry about.

                      You seem angry. Worried you wasted your life backing the wrong team?

                    3. You don’t seem stupid, you are.
                      So stupid as to be unable to distinguish your assholish fantasies from an objective reality.

                    4. “Also my team didn’t try to overthrow the United States government in order to save racist Dr. Seuss books or whatever the fuck they were angry about.”

                      Real laugh riot, shitstain; please explain how the protestors could have possibly “overthrown” anything.
                      Or admit your a drunken lefty pile of shit.

  11. https://twitter.com/LeonydusJohnson/status/1382730596489789440?s=19

    Despite controlling the culture, controlling nearly every institution in this country, and controlling Congress and the Presidency, the left is demanding to be given control of the Supreme Court too.

    It should be beyond clear at this point that these people are totalitarians.

      1. Surprised it took this long.

        Federal raid on Veritas in 3,2,1…

  12. “think long and hard before embodying those changes in law.”

    Thinking long and hard is not really your average progressive’s strong suit.

    1. You know what else was long and hard?

      (The answer is Milton’s Paradise Lost)

      1. That was long and dull. Long and hard? Annakarinina?
        Finnigan wake?
        Aiened?

  13. It seems to me, the logical Republican response would be to increase the number of justices again until there is a conservative majority.
    Then the Dems will do it when they get in power.
    It will end when there are 300,000,000 Supreme Court Justices

    1. Only 300 million? What about the undocumented immigrants?!?1?!

  14. It seems to me, the logical Republican response would be to increase the number of justices again until there is a conservative majority.

    That’s exactly what they’ll do if they ever get a chance. But in the meantime how much damage will an unrestrained ideologically driven court cause?

  15. With the recent bill to pack the court announced by the following everyone should be deeply disturbed.

    Rep. Hank Johnson, D-Ga
    Sen. Ed Markey, D-Mass
    Rep. Jerrold Nadler, D-NY
    Rep. Mondaire Jones, D-NY

    Supreme Court Justice Stephen Breyer deserves KUDO’s for his stance against packing the court.

    I suspect that Pelosi and Biden are playing theater roles and will change their positions after the biased commission report is released.

    The goal of the Democratic (socialist) party is a single party state. The complained about Donald Trumps overreaches, but with Joe Biden in office the overreach has increased. We have replace a terrible Trump with a worse Biden.

    I don’t understand why we insist on electing candidates and parties that are diametrically opposed to individual freedom.

  16. The play is obvious. If Breyer retires and Biden gets a pick a far left judge, and the Senate doesn’t/can’t block it, then it takes ALL of the wind out of their sales. The most recent pick will be a radical lefty.

    They still want to expand the court, so they NEED moderate Dem outrage over the most recent Justice.

    If Biden announces that his stupid commission has decided not to seek expansion, Breyer will retire if he is smart. Otherwise he could very easily end up dying during a republican senate.

  17. “Perhaps Breyer is gearing up to play the Brandeis role today.”

    I respect and like Justice Breyer, but anyone who believes he would be influential among consequential Democrats with respect to debates concerning Court enlargement — particularly if the sense develops that he is going to disregard a chance to have Pres. Biden nominate his successor — is daft.

    I do not expect any genuine movement with respect to this issue until (1) the Biden-assembled panel examines the issue, (2) Democrats get a better sense of how cooperative Republicans will be with respect to governing, (3) the Court provides more evidence concerning the performance of the current lineup, and perhaps (4) better forecasts of the next couple of elections develop.

    1. There is some benefit to holding back. Republicans face the threat of major action if they behave too badly. And they’re acting relatively tame, aren’t they? I had attributed that to the fact that there are no intelligent people left to strategize for them, but maybe they are genuinely being tamed by the majority’s threats.

      1. Was there an intent to offer information in that steaming pile of lefty shit other than to make clear that the shitstain is drunk one more time?

  18. Steve will hold out a few days longer. Oddly enough, liberals are super excited at the prospect of being the first Jew nominated to the SCOTUS by an Indian-American woman

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