On Justice Breyer

They haven’t learned anything. The they in this case are progressive pressure groups determined to bully, browbeat, and guilt Justice Stephen Breyer off the court. These tactics didn’t work with Ruth Bader Ginsburg, why would they work with Justice Breyer?

I, too, hope that Justice Breyer retires at the end of the current term. Despite some of the patronizing voices on the left, Justice Breyer is aware that Mitch McConnell has vowed to stop any Democratic nominee from getting through a Republican controlled Senate. FYI, Breyer used to work in the Senate as an aide to Ted Kennedy. He gets it. He’s neither naive nor stupid.

As a Supreme Court Justice, Breyer has tried his level best to be an apolitical technocrat and dealmaker. There’s nothing wrong with that: every court has such a justice. Because of this role, Breyer is uniquely resistant to political pressure. The louder people yell at him, the more likely he is to resist. He does not want to appear to have resigned under pressure.

Slate legal wizard Dahlia Lithwick who knows Breyer discussed him with Rachel Maddow last night:

MADDOW: In terms of the closed court session as we look towards the end of next week, and the court issuing its rulings. A lot of people around the country are looking at the court and wondering if Justice Breyer is going to retire so he can leave on his own terms, and it gives not only the Democratic president but the Democratic-controlled — narrowly Democratically controlled Senate a chance to replace him.

What do you think of all the strum und drang around that?

LITHWICK: It`s such a funny situation, Rachel, because the only person in the end who is the determinant of what he`s going to do is Stephen Breyer and he`s made clear time and again, including in an interview he gave me at Christmastime that he just doesn`t think that court justices are political, and that this is a political question, and it will retire when he wants to retire. But all of these swirling questions about we have a 50/50 Senate. We have Mitch McConnell announcing this week that he`s not going to ever confirm a Biden nominee if he gets control of the Senate. None of that seems to be part of Justice Breyer`s calculus.

And I would say paradoxically, the more he`s pushed, there is a bunch of ads coming out in the next couple of days. A whole bunch of liberal scholars, 18 scholars signed a letter saying please get off the court. The more he is pushed, the more, in some sense, he is persuaded that this all looks really political, so he better stick around.

I’m delighted that Rachel removed her ill-fitting amateur lawyer hat and talked to a legal expert. She should try it more often.

Each generation of justices has their own reasons for retiring. Earl Warren and Richard Nixon had been enemies in California politics, so Warren retired to allow LBJ to appoint his successor. That didn’t work out, so Tricky appointed the pompous Warren Burger to replace the Super Chief.

Bill Brennan and Thurgood Marshall watched Hugo Black and Bill Douglas cling to the bench despite deteriorating health. That led Brennan and Marshall to retire even though Poppy Bush was president. The good news was David Souter. The bad news was Clarence Thomas.

Breyer and RBG watched Sandra Day O’Connor retire earlier than expected because of her husband’s failing health. He died before she left the court. She always regretted that decision. That’s the backdrop to RBG and Breyer’s reluctance to retire while they still thought they could still do the job. Breyer’s majority opinion in the ACA case shows that he can still do the job.

It’s up to Justice Breyer to decide when to retire. I hope it’s at the end of this term, but that’s his choice. He’s a proud man who has accomplished much in life. The louder people yell, the less likely he is to do the right thing. The pressure campaign reeks of ageism, which seems to be the last acceptable prejudice on the left.

Repeat after me: If pressure tactics didn’t work with RBG, why will they work with Justice Breyer?

In other news, the tropical system in the Gulf is finally getting its shit together. It’s likely to be mostly a rain event and hopefully New Orleans will dodge the worst of it. #fingerscrossed

If it becomes a named storm, it will be Claudette like the movie star and the Roy Orbison song. That’s why Roy and Dwight Yoakam get the last word: