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.

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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.

NEXT: Today in Supreme Court History: September 15, 1857

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  1. Meat, bread. Of course it’s a sandwich.

    1. Beef Wellington seems to fit that bill.

    2. What if it’s a “vegetarian” hot dog and contains no meat? (Yes, I know that’s an abomination, but they do exist).

      Is a cucumber sandwich not a sandwich – after all, it’s right there in the name?

      1. Peanut butter and jelly?

    3. Meatloaf is a mixture of among other ingredients meat and bread crumbs.

      Does that mean a slice of meatloaf is a sandwich?

    4. Under the Cube Rule, a hot dog is a taco.

  2. Justice Breyer thinks he should get to decide questions according to his personal preferences only.

    1. Yes, and all the Ds feel the same. The Rs decide questions based on what they think Christianity wants.

      1. Aw cute paid troll thinks she’s a mind reader now. Do you also believe in astrology and crystals too?

        1. That was the Reagan White House, clinger.

    2. What an arrogant, insufferable, Ivy indoctrinated elitist. Dismissed.

    3. It is all to common for people to declare the law objectively follows their policy preferences.

      It is more a thing on the right to declare that everyone who disagrees with you on the law, including Supreme Court justices, actually agrees with you and is lying about it.

      1. Judges and justices are supposed to read the laws as they are written instead of as they wish the laws were written. The oaths for their positions mention “faithful” allegiance to the laws and constitution. That’s inconsistent with deciding cases and then data-mining laws and historical precedent for some thread of justification to support their preference.

        “It is more a thing on the right to declare that everyone who disagrees with you on the law, including Supreme Court justices, actually agrees with you and is lying about it.”

        I actually think they don’t much care what the laws and constitution actually mean and they will say whatever words get their side closer to a win (except when it’s so egregious that it will damage their credibility with even blue team scholars, but that’s becoming less of a problem as credibility is almost entirely devalued now).

        1. First, data-mining the laws is *exactly* what a judge should do.

          Second, mining historical precedent is not something Breyer does.

          I, for one, take Justices at their word – the write lots of them. Plenty to be unhappy with Breyer about on that count without making up stuff about his secret thoughts about the law.

  3. The Christians of Texas believe that abortion is always wrong and it is their fundamental right to ban it in their state for everyone. SCOTUS would have violated those religious rights by interfering.

    1. Strangely enough, they think the same thing about killing people after they’ve been born, too.

      1. Unless, of course they are sentenced to death because of some murder they committed. Then, finding “god” is a good thing and a “Get off of Death Row” Card.

        1. No, they literally think the exact same thing: “Don’t kill innocent people.”

    2. Yes, paid troll, murder is always wrong.

      1. Paid troll is one of those insults that redounds to the insulter, who now like a paranoiac.

        Anyhow, begging the question is also always wrong, and yet…

    3. But of course John Calhoun famously made exactly the same argument about slavery. Superstitious religions opposed it; progressive one recognized the need to tolerate it.

      I think that history simply precludes claims that questions about whether “created” (DOI’s term) members of the “whole human family” (Dred Scottt’s term) do or do not cross into the protectable category simply cannot be characterized as purely religious questions. They are ethical and moral questions that are secular in character and do not require a theological system to have an opinion on.

      Perhaps John Calhoun was originally right that they were religious in nature. But I think the 13th Amendment has to be interpreted as changing that. I don’t think these types of “it’s just religion” arguments are viable after the 13th Amendment.

      1. Superstition — organized religion — was used to defend and justify slavery, too.

        Mostly, Calhoun was a despicable ass and a certified loser.

      2. “it’s just religion”

        Not even Thomas Jefferson would have dismissed religion like that.

  4. “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. . . .

    Similar to ginsberg’s dissent in encino motors and ledbetter v goodyear. The text says one thing, but ginsberg policy preference was “purpose”

  5. You know, if you don’t want people to think you’re overly political, appearing on Colbert is not the best way to demonstrate that.

    1. In fairness to Breyer, he’s appearing everywhere to sell his book. Any place that will have him, he’ll show up, including Fox News. Across the political spectrum, I believe Breyer thinks most of the interviews are vapid nonsense, but the book isn’t going to sell itself. The recent question of his potential retirement and his dissent in the Texas abortion is also well-timed to market his book.

      1. Ironically, the thing the left wing sites that want him retiring could do that would most improve the odds of that, would be to shut up about his retiring, and help promote his book… If it sold well, he might consider a change of career.

      2. but the book isn’t going to sell itself

        Not always true for politicians. Companies buy blocks of books quietly, “to hand out” if asked, and put them in a warehouse. It’s inefficient, dollar for dollar, to bribe, but is perfectly legal. Bonus if the politician can get an unusually sweet dollar per book agreement from the publisher, itself a legal bribe vector for the publisher itself.

        1. It’s especially effective if the State Department buys truckloads of the book to hand out as Christmas presents.

  6. Breyer explained that “a rule of law means you sometimes follow decisions you don’t like.”

    “follow” is an interesting word in that sentence. I wonder what is means. eg

    (a) follow as in stare decisis ?
    (b) follow as in vote against in court, but don’t go batshit crazy in your dissent ?
    (c) therefter unhappily comply with the law as found ?
    (d) understand ?
    (e) actually vote in court for the decision you don’t like ?

    If it’s (e) I could understand all sorts of things like “make”, “reach”, “find”, but “follow” looks pretty weird.

    1. Also, that’s a very egocentric view of “rule of law”. I wonder if Justice Breyer defines everything exclusively in terms of how it impacts Justice Breyer.

  7. Colbert appearance may get Breyer over the 5,000 book sold mark.

    1. It is undignified for a Justice to peddle stuff on TV. We need Justice Oversight Office. They can fine him and dock his pay for bringing opprobrium and ridicule on his already ridiculous Supreme Court.

  8. “Some emphasize more text. … Some, like me, probably emphasize more purposes.”

    And thus he votes on his ideology/purpose not what is written in the law.

    RNG was the worst justice of my lifetime by far. Breyer is less visible but seems just as bad.

    1. Ok- so if we read just text then “well regulated militia” would mean you have to be in a militia? And it’s well regulated of course. Who would be regulating it?

      It’s a pretty stupid attitude to take that what is written is the end all, be all. Because if that holds true, would you have to register weapons as part of that regulation? You HAVE to read some purpose into it.

  9. “Some emphasize more text. … Some, like me, probably emphasize more purposes.”

    So he votes on ideology rather than the law as written. Much like RBG who was just an awful justice.

  10. Breyer is subtly getting at the fact that he’s immortal.

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