Observations On Justice Breyer’s Retirement

Justice Stephen Breyer, at 83 the oldest member of the Supreme Court’s left wing, will retire from the Court at the end of the 2021-22 term.


  • Good. Unlike Justices Scalia and Ginsberg, he is not waiting for the Grim Reaper to remove him from the job. 83 was pushing his luck as it was. This was the ethical and responsible thing to do.
  • Was Breyer pushed into retirement by Democrats, who want Biden to be able to appoint a 27 year-old socialist ideologue hostile to gun rights, free speech and any restrictions on abortion and affirmative action? It doesn’t matter. At worst, he’s doing the right and responsible thing for some unethical reasons. It’s still right and responsible.
  • Now we’ll see how ethical and responsible President Biden is. A choice that would make the most people happy would be to re-nominate Merrick Garland. He’s a lousy Attorney General; his record indicates that he’d be a rational progressive on SCOTUS, and it would right an undeniable wrong, though a legal one, in canceling Mitch McConnell’s boycott of his nomination six years ago.
  • I doubt the President will do that. He’s probably locked into nominating a black woman, whether or not there is one currently on the bench who is qualified or trustworthy, rather than the most qualified candidate. All of the (legitimate) objections to Clarence Thomas’s appointment by President Bush the First will apply, just from a different end of the ideological spectrum.


Pointer: JutGory

45 thoughts on “Observations On Justice Breyer’s Retirement

  1. Conservative wag Jesse Kelly tweeted: “Whoever Biden wants to replace him raped me in high school. I don’t remember where. Don’t ask me to come back to DC. I’m afraid to fly.”

    • He jokes. But given the 1st Rule of Interpreting Democrat accusations – I wouldn’t put them past nominating an open pervert to the position, then justify it with “well the GOP did!”

  2. “A choice that would make the most people happy would be to re-nominate Merrick Garland. He’s a lousy Attorney General;”

    Wouldn’t his incompetence or miscreance in this position imply he doesn’t understand the role of the Constitution in American society? In which case, I’d say we dodged a bullet with McConnell’s Machiavellian maneuvers. Moral luck.

    No, Biden will attempt to ramrod through the most insane version of a progressive we’ve seen to date on the narrowest margin of Senate ‘majorities’ mathematically possible.

  3. He could give the vice-incompetent the honor of the nomination, in the longshot hope that cutting loose that anchor might help the party a bit in the next couple of election cycles. Actual confirmation would seem unlikely.

    • Could imagine in days gone by when actual Statesmen were at the helm…the uproar on both sides of the aisle if a President nominated the Vice President in a situation where the Vice President would potentially cast the deciding vote?

      • Interesting enough, I am hearing some debate about whether the VP can actually break the tie on a Supreme Court nomination.
        Evidently Lawrence Tribe, as a rabid never-Trumper, opined a couple years ago that if Trump nominated someone and it ended up in a tie, Pence could not break the tie. And he’s said he hasn’t changed his position.

        Another element to nominating Harris to the Court — her successor would have to be confirmed by both houses of Congress and there would be no VP to break a tie in the Senate for that, whether the VP would have the authority or not.

        • 1) If true, POTUS would have to at least nominate someone that 1 Republican can stomach.

          2) She wouldn’t need to cast tie breaker vote to replace VP – total Senators and Representatives are odd, and they vote as a whole for a 25th Amendment replacement.

  4. I’m with @Michael West here. Garland’s tenure as Attorney General so far doesn’t exactly fill me with confidence in his knowledge of the Constitution or the separation of powers. Call me old fashioned, but these things would seem kind of important for a Justice at SCOTUS…

    • I’ve concluded that my esteemed sister’s analysis is correct: he’s a weak politician who has allowed himself to be manipulated by people less smart than he is. Based on his record on the bench, I’d expect him to settle down into scholarly, judicial rationality.

      • I’d say being weak and able to manipulated is a solid disqualifier. Regardless of his supposedly good performance before, his conduct now shows his inability to be Supreme Court Justice.

        • I agree with Michael again. Though it was interesting to hear Clay Travis and Buck Sexton on this this afternoon (they’re the guys who took over roughly 60% of Rush’s audience): don’t expect Republicans to block even the most extreme nominee from Biden. There’s nothing to lose, and everything to gain.

          Actually, to someone else’s point, nominating Cameltoe – er, I mean, the Vice President – could actually be a pretty shrewd move on Biden’s part. He’d get the allegedly Black woman he promised on the Court. He’d get rid of one of his most significant liabilities – Kamala. And under the 25th Amendment, he could appoint a VP with a majority vote of both chambers of Congress (I’m not sure if the 25th would let Cameltoe cast the tiebreaker).

          From a strategic perspective, that’s the smart move. Given the paucity of smart moves we’ve seen from this White House, I doubt it would happen. And thank God for that.

          • Oh, I agree. In fact, the ethical thing would be to return to the good ol
            days before Bork and vote overwhelmingly for Biden’s nominee after nice, friendly questioning. They can’t block whoever it is. It’s an easy way to take the high road, when the low road goes nowhere.

  5. If the Machiavellians are smart, they’ll nominate a +10 Anti-Constitution Progressive, let the Republicans melt down in a furor. Then nominate a +8 Anti-Constitution Progressive so the non-paying-attention masses will think the Democrats have moderated their selection and pressure GOP to cave or to envision the GOP as mere obstructionists.

  6. Breyer knew that stay or go, he wasn’t changing the makeup of the court, so there was noo sense to stay on the court until he went down for the dirt nap. Scalia hung on to prevent the correct from swinging far left, Ginsburg hung on out of hubris and probably spite, but he has no such reason. Sorry, Garland blew his chance, or had it blown for him, no new white guys allowed. After all, the only thing that matters about the next justice is that she be a black woman, preferably a loud, overconfident, angry black woman with one of those voices that goes right through you.

    • “After all, the only thing that matters about the next justice is that she be a black woman, preferably a loud, overconfident, angry black woman with one of those voices that goes right through you,”

      You left out significantly overweight, bitter, resentful, with an enormous chip of entitlement on her shoulder.

      Translation: Stacey Abrams

  7. No telling who President Biden is going to drag out of the progressive gutter and no telling what the Republicans are going to dig up on the nominee. I bet the Republicans already have a team working on digging up dirt on every possible nominee, I’m sure they can find someone from any nominee’s High School or past failed relationships that would besmirch the nominee. Sounds like there’s going to be a “new” circus in Washington DC in the coming months; what fun.

  8. What will be interesting is to see how the various stances the Senators and pundits take with respect to Schumer’s attempt to ram through a candidate before the mid-terms.

    Of course, if Biden were smart (if!), he would start vetting candidates now in order to deflect criticism that he is rushing someone in.


    • There was also talk way back when of nominating Bill Clinton to be General Secretary of the UN. This is probably the same level of chatter.

  9. Surprising no one has mentioned the IIPTDXTTNMIAFB elephant in the room.
    If Trump had pledged to nominate only a white male….

    • If Trump had pledged to nominate only a black woman . . . he’d be accused of pandering. And then some writer from the Times or the Post would write a piece where they twist it into something completely ridiculous, like cultural appropriation or ‘proof’ that he’s a racist^H^H^H^H^H^H white supremacist.

      Because . . . TRUMP!!!


      • An enjoyable reality check from a member of the Virginia House of Delegates:

      • As an avid user of Twitter, I try to follow a wide range of accounts. And the general gist I’m getting from commenters across the board isn’t “tingle up my leg” excitement over this “historic” selection of a black woman. It seems mostly that everyone sees right through it and is actively offended at best and cynically disgusted at worst.

        If it wasn’t for the increasing all importance of SCOTUS, I’d say good that this is one more thing backfiring against the DNC – a treacherous organization that deserves everything backfiring on it.

  10. Of course, all of this is really just a bad sign for the dignity of SCOTUS and the strength of the divided government.

    The only ethical reason for any Justice to retire is because it’s time to retire. But we all know Breyer is making a strategic retirement to permit a Democrat president to appoint and a Democrat Senate to approve a Progressive to the bench. This is a clear indication of the intentional politicization of the Court – which is was never meant to be.

    This is all because of the ever increasing ability of Executive Branch and now the Judicial Branch to basically become alternative legislatures to Congress which has largely surrendered most of it’s power since the technocratic growth of the bureaucracy from FDR’s time.

    The Founders’ intention was that the Executive would actually be the first block against unconstitutional laws passed by Congress – even blocking his own party’s push of law that is unconstitutional. But now that we are in an era convinced that the role of government is to divide up material wealth among constituents, the President is just a rubber stamp for how his party wants to divide the spoils of victory.

    SCOTUS became the interpreter of constitutionality of law and, in the environment described above, actually now merely becomes the arbiter of what level of spoil distribution is permissible – while occasionally ruling on things of value.

    But this means the belief in what a Constitution exists for is dying (which I think is the intent of the Marxist worldview anyway that merely wants government to be the distributor of stuff – not the protector of liberty). The President is clearly now just an older brother legislator at the command of a dizzying array of bureaucrats who, for the most part, determine the laws and regulations we have to adhere to, since Congress has largely granted them the authority to do so. Supreme Court Justices are now just third line legislators, as many of the regulations coming out of the Executive Branch are clearly unconstitutional but the plethora of them means most will not find a challenge and when challenged will reach the 3rd branch of Legislature for repeal or endorsement.

    Why has Congress largely surrendered it’s authority?

    Probably alot of reasons –
    Apathy of the voting populace
    Increasing belief that experts plugged into the Executive branch can guide our lives authoritatively
    Fewer and Fewer representatives to receive the focus of increasingly deeper spending means they are less inclined to focus on the business of governance because there’s too few of them and now the perks for distraction a greater.

    I still think that Justices should serve for life and only be appointed when a vacancy occurs. But I am one step away from begrudgingly believing in term limits for SCOTUS essentially creating a system where each election cycle, POTUS picks 1 new justice to an 18 year term. From a list the Senate submits beforehand.

    But really the problem with Legislative apathy needs to be solved. I’m not sure how that happens without also solving voter apathy. So it seems like a great opportunity to plug the need to expand the House of Representatives by at least fourfold. And if we really wanted to be radical, we’d break up some of the larger states into smaller ones to expand the Senate as well. I’d even give each State 3 Senators to avoid the stupid rotating set of states that is “protected” during Presidential elections.

  11. Heard an interesting take on Biden’s pledge to nominate an African-American woman to the bench; this is the soft bigotry of polite racism. If/When an African-American woman is nominated, she will not know if she is truly worthy of consideration as a nominee. Harris was not chosen for her qualifications and she knows this and seems fine with it, but there’s only one Vice President. With eight other Justices, she’ll have to be as oblivious as Sotomayor or be able to go toe to toe with Thomas.
    It would have been better to have simply nominated an African-American woman rather than to have pledged to do so.

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