The Volokh Conspiracy

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Supreme Court

Justice Breyer Thinks Supreme Court's Refusal to Intervene in SB8 Litgation Was "Very Bad"

The Justice continues his media book tour without commenting on his potential retirement.


George Stephanopolous interviewed Justice Stephen Breyer on ABC News' Good Morning America, and the justice again refused to say when he might retire. Justice Breyer did, however, confirm that he dissented from the Supreme Court's denial of injunctive relief in Whole Women's Health v. Jackson because he disagreed with it: "I thought that was a very bad decision and I dissented."

Justice Breyer also commented on the divisions on the Court.

"We don't trade votes, and members of the court have different judicial philosophies," Breyer, the court's most senior liberal justice, told George Stephanopoulos on ABC's "Good Morning America."

"Some emphasize more text. … Some, like me, probably emphasize more purposes. And the great divisions are probably much more along those lines than what we would think of as political lines," Breyer said. . . .

Breyer explained that "a rule of law means you sometimes follow decisions you don't like."

On his potential retirement, Justice Breyer was as noncommittal as ever:

"There are many different considerations," Breyer said. "I do not intend to die there on the court; I hope not."

While progressive activists have focused on Justice Breyer, urging him to retire, some are beginning to turn their attention to liberal judges on federal appeals courts who are eligible to take senior status, but have not done so. Efforts to encourage such judges to create vacancies for President Biden to fill are mostly behind-the-scenes for now, but that could well change in the coming months.

UPDATE: In another interview, this one with Stephen Colbert, Justice Breyer addresses the eternal question: Is a hot dog a sandwich?

And here is another clip from the Colbert appearance in which Breyer talks about cameras in the courtroom and the Texas SB8 litigation.