Why Justice Breyer May Resist Calls for His Retirement

[Celerity]

In a recent speech on “the peril of politics,” Justice Stephen G. Breyer said judges must renounce loyalty to “the political party that helped to secure their appointment.”

https://www.nytimes.com/2021/05/17/us/justice-breyer-retirement.html



WASHINGTON — Many liberals say Justice Ruth Bader Ginsburg made a terrible miscalculation in deciding, in her 80s and after bouts with cancer, not to retire under President Barack Obama. She died in September, allowing President Donald J. Trump to name her successor and shift the Supreme Court to the right. Some of those same liberals are now urging Justice Stephen G. Breyer to step down and let President Biden nominate his replacement. The justice is 82 and has been on the court for nearly 27 years. In almost any other line of work, he would be well past retirement age. “Breyer’s best chance at protecting his legacy and impact on the law is to resign now, clearing the way for a younger justice who shares his judicial outlook,” Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley, wrote in The Washington Post this month.

But scholars who have studied justices’ decisions to leave the court said they had their doubts about the wisdom or effectiveness of such prodding. “Justices don’t like to be pressured politically, and they generally don’t like law professors telling them what to do,” said Christine Kexel Chabot, who teaches at the Loyola University Chicago School of Law and is the author of a 2019 study called “Do Justices Time Their Retirements Politically?” “A justice, like any other federal judge, would rather confess to grand larceny than to confess a political motivation,” she said.

Justice Breyer has been particularly adamant that politics plays no role in judges’ work, and he recently suggested that it should also not figure into their decisions about when to retire. “My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

In the speech, a version of which will be published in September as a book called “The Authority of the Court and the Peril of Politics,” Justice Breyer said that the odor of partisanship damages the judiciary. “If the public sees judges as politicians in robes,” he said, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.” Artemus Ward, the author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court,” said Justice Breyer might stay on to shield the court from charges of partisanship. “Breyer is a justice who is with the chief justice in trying to protect the institution,” said Professor Ward, a political scientist at Northern Illinois University. “Justices care about the court, and the court is arguably very vulnerable right now.” “This is a guy who I believe is not going to retire,” he said of Justice Breyer.

snip

[leftieNanner]

1. Oh! I'm so relieved!

This means that Clarence, Sammy, Neil, Beer Boy, and Church Lady aren't partisan and will only rule every case on the merits - considering precedent every time..........

Ditto your

[Ace Rothstein]

2. Incoming 7-2 conservative majority because our justices won't retire when we can replace them.

[2naSalit]

3. Maybe someone from the wrong side of the law...

Will go out, one way or another. I would not shed a tear if Thomas or one of the older two didn't last the year for some reason.

[Generic Brad]

8. They sure as tootin' won't live forever

Nothing lasts forever. So there's that.

[2naSalit]

9. Exactly...

Only time will tell.

[dsc]

4. I hope this is some kind of head fake

We will never be able to regulate anything ever again federally if Chevron goes down. Imagine an EPA that can't regulate air pollutions or an OSHA that can't regulate workplaces or a treasury department that can't regulate banks. If Chevron goes down it will literally take an act of Congress to regulate anything, at anytime, for any reason. Of course you can add to that no protections for any minority at any time.

[Celerity]

5. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.?

https://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984), was a landmark case in which the United States Supreme Court set forth the legal test for determining whether to grant deference to a government agency's interpretation of a statute which it administers. The decision articulated a doctrine now known as "Chevron deference". The doctrine consists of a two-part test applied by the court, when appropriate, that is highly deferential to government agencies: "whether the agency's answer is based on a permissible construction [emphasis added] of the statute", so long as Congress has not spoken directly to the precise issue at question.

The decision involved a lawsuit challenging the U.S. government's interpretation of the word "source" in an environmental statute. In 1977, the U.S. Congress passed a bill that amended the Clean Air Act of 1963—the United States' comprehensive law regulating air pollution. The bill changed the law so that all companies in the United States that planned to build or install any major source of air pollutants were required to go through an elaborate "new-source review" process before they could proceed.

The bill did not precisely define what constituted a "source" of air pollutants, and so the Environmental Protection Agency (EPA) formulated a definition as part of implementing the changes to the law. The EPA's initial definition of a "source" of air pollutants covered essentially any significant change or addition to a plant or factory, but in 1981 it changed its definition to be simply a plant or factory in its entirety. This allowed companies to avoid the "new-source review" process entirely if, when increasing their plant's emissions through building or modifying, they simultaneously modified other parts of their plant to reduce emissions so that the overall change in the plant's emissions was zero. The Natural Resources Defense Council, an American non-profit environmental advocacy organization, then filed a lawsuit challenging the legality of the EPA's new definition.

Chevron is one of the most important decisions in U.S. administrative law, and has been cited in thousands of cases since being issued in 1984.

[dsc]

6. yep

[Celerity]

7. if THAT is reversed, we are well and truly fucked

[FBaggins]

10. The WaPost calling him delusional is unlikely to help

https://www.washingtonpost.com/opinions/2021/05/18/stephen-breyer-danger-deluded-institutionalist/

[Celerity]

14. that article speaks truth

Few among us want to be insulted by people who are instructing us on what to do with our lives. But that is the situation Supreme Court Justice Stephen G. Breyer now finds himself in. At the age of 82, he is besieged by liberals pleading with him not to repeat Ruth Bader Ginsburg’s mistake, to retire now while he can be replaced by someone of a similar legal outlook.

In response, Breyer could become the most dangerous version of himself: the solitary institutionalist, so convinced that he alone can save the body to which he is devoted that he blinds himself to reality and helps those who would undermine everything he supposedly stands for.

Breyer’s situation has a disturbing parallel in Sen. Joe Manchin III (D-W.Va.) who is as eager to protect a Senate that now exists only in his imagination as Breyer is to safeguard the fiction of an apolitical Supreme Court. The damage the two could do, each guided by what they consider the noblest of motivations, is utterly frightening.

[FBaggins]

15. Which isn't the same thing as helping

if it makes him less likely to retire.

[Celerity]

16. He's an opinion writer for a newspaper, I hardly think Paul Waldman's tilting the balance either way

[Carlitos Brigante]

11. Sure, because what could go wrong?........ nt

[tinrobot]

12. Except judges on the other side DON'T renounce loyalty

Nor do they judge impartially.

[Bettie]

13. So, to recap

he's going to wait until Democrats can't replace him, but Republicans can.

FFS.