Pre-Writing Justice Breyer's Obituary

It is a surreal experience to talk to a reporter who is pre-writing a Supreme Court Justice's obituary.

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On April 9, 2010, Justice Stevens announced his retirement. And on April 30, 2009, Justice Souter announced his retirement. At this point, it is safe to say that the reports of Justice Breyer's retirement are greatly exaggerated. He's not stepping down–this year, at least. This timing has not been not lost on Erwin Chemerinsky and other prominent progressives. They are imploring Justice Breyer to avoid RBG's mistake, and step down ASAP. I suspect these moves will inevitably backfire. There is a constant drumbeat that Justice Breyer is no longer needed, and a younger person can do the job just as well, if not better. (I suspect the White House is dangling KBJ, Breyer's former clerk, the same way Kavanaugh and Kethledge were used as Kennedy bait). Well, Justice Breyer will prove them wrong–for some period of time, at least. Eventually, all good things must come to an end. All men are mortal.

I recently had a surreal experience. A reporter asked to interview me. She was pre-writing Justice Breyer's obituary. She wanted to have an updated package ready to go once he passed. The rule were strict. The reporter instructed me to only speak of Justice Breyer in the past tense. I had to talk about his legacy without regard to what he still may accomplish. I had to anticipate how people would react if he died with a divided White House and Senate. And so on.

I've long held Justice Breyer in a very high regard. (Here, I will use the present tense). He is the most moderate Democratic appointment in a generation. His obsession with democracy tempers almost all aspects of his jurisprudence. His rulings on affirmative action, the Free Exercise Clause, the Establishment Clause, and the Separation of Powers, always reflect an attempt to achieve balance. He brings the Court to the middle in ways that are often invisible to the public.

Indeed, I think Justice Breyer has quietly pulled the right flank of the Court to the center. I often give Justice Kagan a lot of credit here, but Justice Breyer is an effective negotiating partner. Justice Breyer was probably responsible for brokering the Chief's saving construction in NFIB–the most significant act of moderation in decades. If Justice Breyer were to be replaced by someone far to his left, that moderation may vanish. It is unclear if KBJ could pull Roberts and Kavanaugh to the center effectively. Replacing Justice Breyer with a more progressive member could yield an even-more conservative court. Cases that went 5-4 squishy-middle will now go 6-3 hard-right. Justice Kagan cannot do everything on her own.

From 1994 through 2005, the Court stayed remarkably stable. Justice Breyer was forever the Junior Justice. Now he is the oldest Justice. And we have seen significant turnover. Since 2005, seven new members have been added to the court. We've had three new appointees in the last four years. I would appreciate a summer without a confirmation hearing.

NEXT: Pressuring Justice Breyer to Retire

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  1. “His obsession with democracy tempers almost all aspects of his jurisprudence.”

    Like with same-sex marriage?

    1. That’s not *true* democracy. It’s not *People’s* democracy.

      1. You speak like the SCOUS didn’t trail popular opinion in ruling for equality in marriage. But of course they did.

        60% pro-gay marriage before & after the ruling
        70% pro-gay marriage now.

        The *People* are pleased, even if you’re throwing a blue-faced snit

        1. Yeah, that’s why a majority of states opposed the forced recognition of such arrangements when the people actually went to the polls to register their beliefs — even California!

          And if leftists believed it was inevitable and popular they would have done it legislatively, not by royal fiat.

          1. There were a lot of referenda and amendments against it but that approach fizzled out well before the Supreme Court decision, and many states had passed legislation legalizing it (mostly as domestic partnerships or civil unions early on, but later as marriage). Before public opinion shifted, the GOP commonly used it as a wedge issue to increase their value voter turnout; when it started to lose consistently, they switched to other issues on the ballot (even if it remained red meat for the base otherwise).

            One obstacle to legislating anything progressive has been the degree to which state legislatures were gerrymandered after the 2010 census.

            1. Freedom from forced recognition won the overwhelming majority of states. If you were confident of majority support for your position you would not be supporting the anti-democratic SCOTUS decision and the continuing seemingly endless legislation forcing people to conform.

              Public opinion is shifting sand and in the era of cancel culture, where any deviation is punished, color me unconvinced.

              1. Gay marriage earns nearly 70% approval today.
                But – hey – that’s all because of “cancel culture” terror, right ?!?
                Do you really believe that nonsense……

                https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx

              2. I think the opposite; Republicans stopped putting forward these measures because shifting public opinion on this issue meant it stopped benefiting them, long before the Supreme Court ruled on it. The likely reason for the shift is that, once same sex marriage was legal in some places, most people saw that the gays getting married were really rather ordinary people, nobody was marrying pets or inanimate objects, and existing marriages remained unaffected, and so the fear driven canceling of gay marriage ended.

            2. Many people envisioned outcomes that didn’t come to pass.

              The same thing has happened in a lot of cases.

              I remember a story my father told me about a meeting of the board of our church. with the Civil Rights movement in the news one member brought up the question of what would happen if a Negro wanted to join the church. There was much handwringing and such when My father mentioned that Dr. and his wife had been attending Sunday evening services for years. The Doctor was a black Professor at recently integrated West Virginia State College a HBCU located one town over. Everybody calmed down and went about their business.

        2. Yet, when faced with the chance to vote on it, even California opposed it.

          Votes are a better test than polls.

          People are resigned to it.

          1. Bob from Ohio : People are resigned to it.

            Uh-huh. Isn’t it more likely they realized their old view never made sense to begin with? The majority of Americans are pretty fair people, even if the demographics skew against that trait in this forum. Marriage equality just makes sense.

            Re this issue, you are on a shrinking ice floe, drifting ever-further away from the majority of people as global warming melts the ground under yer feet.

            That’s my best description of your situation, Bob. (If the Rev. Arthur L. Kirkland was here, he probably do much better)

            1. You know what else has become a consensus issue? Deficit spending and a large national debt.

              By your logic, it has bipartisan popularity and opposition to it is confined to a a few cranks, so it must be OK.

              1. Deficit spending ?!? For nearly a half-century it was hardly a bipartisan issue. Carter left a deficit of a few score billion and Reagan-Bush drowned the nation in red ink. Clinton left budget surpluses and W Bush exploded the deficit. Obama inherited a 1.3 trillion dollar deficit projection on his first day in the presidency, and year-by-year cut that down to nearly a third-size by his last day in office.

                But then it took Trump under two years to double the deficit he inherited and restore plus-trillion dollar deficits. So you see, there was a “bipartisan” element to debt. The GOP partied-hearty every time they had power, then became stern & dour moralists when they didn’t. Like you, for instance. If you didn’t oppose Trump’s tax cuts (and I’m betting you didn’t), then why are you here lecturing?

                After forty-plus years of being gamed by the Republicans, Biden is determined to be as profligate as they are. They may not be a good thing, but it’s damn sure understandable.

                1. You haven’t really contradicted what I said.

                  I was showing a certain logical flaw in your reasoning – that the popularity of a policy shows that it’s right. You tried to show that state-sposored gay marriage must be OK because opposition to it has collapsed. Logically, you can say the same about deficits and debt.

                  1. Cal Cetín : state-sponsored gay marriage ?!?

                    I haven’t attended any recent marriages, much less a same-sex one. However I know of some & have heard of more. Nary a one to my knowledge were “state-sponsored”. Can you provide examples of this phenomena?

                    Hell, I might even join your peevish & churlish snit when provided with evidence of the “State” sponsoring these marriages. When me and the Ex tied the knot, we had to foot all the bills ourselves.

                    (of course you might be confusing Marriage-Equality with this bizarre state-sponsored shtick. It’s the kind of mistake a right-type makes)

                    1. By all means think of your own term to describe a situation in which the state recognizes a relationship, assigns it tax benefits, testamentary privileges, etc., punishes florists, bakers, etc. who refuse to cater the relevant ceremony, all without sponsoring the relationship.

                      Would “state-enforced gay marriage” meet your stylistic objections? Or do you object to words which describe the very thing you’ve been seeking?

                    2. “In a real sense, there are three partners to every civil marriage:  two willing spouses and an approving State.”

                      /from the Massachusetts high court decision establishing gay marriage in that state

                      https://caselaw.findlaw.com/ma-supreme-judicial-court/1447056.html

                      So by all means look for a term to describe this situation which minimizes the very state involvement which attracted you to this policy in the first place.

                    3. Cal Cetín : “By all means think of your own term….”

                      Nah; not that interested. I’m too busy trying to get my head around the fact we had a “state-sponsored” wedding back in 2000. No one never guessed!

                      (at least I think I did. We had a Key West preacher who was a bit shaky. After the service he took a six-pack down to the beach, fell asleep, and got horribly sunburned. And the service was on a spit of land 69miles out into the ocean. Thus I got horribly seasick on my wedding day. Are you really sure the State sponsored this ?!?)

                    4. At the risk of seeming unsentimental, did the government extend to you the various benefits and immunities of marriage, and does the government now offer to take your side against any private business which doesn’t recognize what you call your marriage?

                      If the state does none of those things, I see no reason as a citizen why I should begrudge you whatever ceremony pleases you.

                      If on the other you’re going to call in state aid and recognition, then (once you’ve settled on proper terminology to describe such aid and recognition) you can ask what I think of the state’s actions.

                  2. Cal Cetín : “punishes florists, bakers, etc”

                    Ah! The republican twenty-first century answer to Holy Christian Martyrs : A minor artisan craftsmen willing to be a rude jerk to his customers.

                    If that ain’t Christian, what is?

                    1. I’m interested in your doctrine of rights belonging only to people you think are nice.

                    2. “If that ain’t Christian, what is?”

                      Is it the government’s job to dictate proper Christian behavior?

        3. That kind of ignores the very negative role the courts had in the gay marriage debate. The courts set back gay marriage at least a decade if not more by overreaching.

          Before the Hawaii and Massachusetts state supreme court rulings there were no state constitutional bans on gay marriage, eventually there were around 32. That made debate and incremental progress almost impossible, and left a supreme court ruling the only avenue to succeed.

          1. Or, you know, you could convince people of the righteousness of your cause…

            1. Why have a bill of rights anyway – just convince people your cause is righteous!

              1. Yup, sodomy’s right there next to abortion …

                1. Weird how you switched from gay marriage to sodomy.

                  Good luck with your puritans crusade.

                  1. Progressives are puritans without Jesus/Yahweh/Allah … or morals.

                  2. And yes, I noticed you switched from what is actually in the constitution…

                    1. The Supreme Court, the Ninth Amendment, and the Fourteenth, all disagree with your take.

                    2. The 9th also guarantees the right to life of a baby in the womb and the 2nd Amendment requires government provided arms — do you really want to go down that route?

                      It was an anti-Democratic decision and you have no problem cheating…

          2. Kazinski : The courts set back gay marriage at least a decade if not more by overreaching.

            And yet gay marriage now earns nearly 70% approval. We should all suffer that kind of “set back”, eh?

            https://news.gallup.com/poll/311672/support-sex-marriage-matches-record-high.aspx

            1. Sure it worked out, if you are playing the long game.

              1. Are you willing to admit that the sky did not fall when same sex marriage became available nationwide, contrary to right wing predictions?

                1. Could you be more specific in your citations?

                  1. Cal Cetín : Could you be more specific in your citations?

                    Oh, I’m certain he could dig-up a few predictions of locust plagues & other calamities if he put his mind to it. The religious Right is never shy about foreseeing apocalyptic catastrophe as a result of the country sinking into sin, iniquity, and lawlessness. Kinda makes you wonder how we all survived Donald Trump…..

                    But there were some common views of a more general nature as well: Marriage equality would be a festering affront, imposed on a surly populace. Or gays marrying would (somehow) tarnish John & Jane’s vows when they took the plunge.

                    The latter prediction flopped because it was silly to begin with; Jane & John are doing just fine. But the biggest fail of all was the former prediction. The poor Right counted on people forever seething with rage over this issue. Instead they all got up one morning and decided marriage equality was just plain simple fairness. Their old view suddenly looked absurd. Happy outcome, eh?

                    1. I was more interested in specific citations to specific people predicting specific things.

        4. Then you have nothing to lose allowing the people to decide for themselves – they’d all decide the right way in any case, and the judges wouldn’t have to tie themselves in knots explaining how they discovered some brand-new constitutional right under the sofa cushions, on an issue which in the 70s they said presented no substantial federal question.

  2. “They are imploring Justice Breyer to avoid RBG’s mistake”

    Dying? Everyone is scheduled to make that mistake sooner or later.

    1. Dying at an inconvenient time.

  3. “I recently had a surreal experience. A reporter asked to interview me. She was pre-writing Justice Breyer’s obituary.”

    I don’t want to look it up right now, but there was a skit (SNL?) where Rather or Cronkite or one of that crowd was going on vacation, and had to pre-record the obituaries of whoever was at risk of dying during the vacation.

    “Justice Stephen Breyer died tonight during a running gun-battle with members of a rival motorcycle gang. His last words were ‘eat lead, suckers.'”

    “Justice Stephen Breyer died tonight of a heart attack in the apartment of a local stripper and model.”

    “Justice Stephen Breyer died today after he pulled a toddler from a burning building. His death was the result of going back into the building to rescue the toddler’s pet rabbit. A stew will be served at the funeral.”

    “Stephen Breyer died today in the middle of giving a dedication speech at a monument honoring himself. The coroner says the cause of death was boredom.”

    I think that covers the possibilities.

    1. This comment made me smile with nostalgia and laugh at the examples you made, thanks!

      Btw-it was Brokaw doing Ford obits over and over.

      https://www.youtube.com/watch?v=1tX6jdoruH8

    2. The concept was amusingly revisited in Operation Righteous Cowboy Lightning: https://www.youtube.com/watch?v=rUxzaQrOAOA

  4. I enjoy how Breyer often earnestly engages both sides during oral arguments to come up with line drawing they can agree that won’t lead to a slippery slope. It can be frustrating as he plods his way through (where is he going, can’t he be concise), but he is likely thinking out loud which establishes his honesty.

  5. “The rule were strict. The reporter instructed me to only speak of Justice Breyer in the past tense. I had to talk about his legacy without regard to what he still may accomplish. I had to anticipate how people would react if he died with a divided White House and Senate. And so on.”

    Did she pay you for doing her job?

    1. Answering a reporter’s questions is the reporter’s job?

  6. “They are imploring Justice Breyer to avoid RBG’s mistake, and step down ASAP.”

    That’s an incredible degree of arrogance, to think and speak in those terms. Perhaps she just wanted to serve as long as possible, and wasn’t a political hack like those who encouraged her to resign under Obama. Wow.

    1. Suddenly Publius doesn’t think RGB is a hack.

      1. Once aagain, unfunny Sarcastr0 posts content-free personal attack. And dog bites man. Film at 11.

        1. I said nothing about your character.

          I’m pointing out an inconsistency in your argument.

          You’ve never accused RGB of having integrity before. And suddenly you find she’s got a lot of it, just when it’s convenient to call Dems arrogant.

          1. They’re just throwing out anything that comes to mind, trying to own the libs for a moment as they continue to sink into the cold, unforgiving depths of the culture war. Consistency? Principles? Those are for libtard suckas!

  7. “Replacing Justice Breyer with a more progressive member could yield an even-more conservative court.”

    Embarrassed concern trolls wish Josh would tone it down a bit.

    1. Conservative justices trying not to upset those who could enlarge the Court will yield a less-conservative Court . . . but only for so long. Then, enlargement.

  8. Prof. Blackman gets criticized for his seemingly volume-oriented postings so in fairness I want to recognize this thoughtful and thought-provoking article.

  9. “Breyer was probably responsible for brokering the Chief’s saving construction in NFIB–the most significant act of moderation in decades.”

    How was it in terms of interpreting the law and constitution faithfully and coherently? NFIB allowed a tax mandate but not a command mandate, now the court is still dealing with the issue because Roberts “moderation” made such a mess of it. If the tax goes away is it still a mandate? If it is then it’s unconstitutional again, and should be struck down, unless no one has standing to object to an unconstitutional command with no penalty, unless of course they try to levy some sanction in the future based on not complying with the “mandate”. That’s just a mess, that the court may have to resort to standing to keep from having to clean up Roberts mess of an opinion.

    1. “How was it in terms of interpreting the law and constitution faithfully and coherently?” This should be the ONLY metric that judges are judged by.

      1. This.

        Blackman’s appreciation of Breyer here would be perfectly fine and wonderful praise… of a legislator. Of a justice, it comes off much more like condemnation.

  10. Am I the only one with no idea who ‘KBJ’ is?

  11. An interesting article. Thanks for the info.

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