Michael West’s rueful Comment of the Day relating Justice Breyer’s eagerly awaited (by Democrats) retirement to the deterioration of the balance of powers intended by the Founders presents a useful perspective. My only cavil is his introduction.
I think it is unfair to assume that Breyer retired to ensure that a Democrat President would choose his successor. Maybe he did, but nothing Breyer has said in his years as a Justice would be consistent with that thesis. Breyer, unlike Ruth Bader Ginsberg, has never been overtly political, and has objected to accusations that his colleagues on the Court were driven by partisan agendas. If we take him at his word, it would be extremely out of character to quit so Joe Biden could apppoint a replacement based on an ideological check list filtered through the non-merit restrictions of race and gender. 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,” Michael begins. Well, at 83, it’s always past time to retire. I think Justice Breyer has earned the benefit of the doubt.
Now here’s Michale West’s Comment of the Day on the post, “Observations On Justice Breyer’s Retirement”:
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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 three Senators to avoid the stupid rotating set of states that is “protected” during Presidential elections.
Ethics Alarms 
I agree with Jack, I think it is unfair to assume he is retiring based upon the President.
It is kind of like any athlete. You make the decision about whether to retire once you get to the off-season. And, if you plan to retire, you give notice early (say, before the NFL draft), not the last minute (say, 2 weeks before training camp).
The question Breyer has, right now, is: am I willing to commit to another full season? Maybe he got diagnosed with something. Maybe he is just tired. Maybe Souter keeps calling him up to play tennis. Maybe he just figures he Is outnumbered and does not think he will make much of a difference in the next few years.
(Wasn’t he the swing vote for many, many years? If so, it is more likely that he is retiring because he is not that important anymore. He doesn’t care about Biden; he cares about himself.)
Whatever the case, he made the decision at the right time to allow the other branches to gear up for a fight.
-Jut
It may be cynical and he may be suffering from association with the mass group of people who have earned that judgment. I haven’t seen a progressive act in good faith since about the time that the post-9-11 surge of unifying feelings waned.
And based on what I’ve observed of all the unnoticed bias from before, I wonder how much of the Left’s good faith was pure dishonest fiction while they new they commanded the narrative.
They don’t have to fake it anymore since the jig is up.
The issue that I see in this particular case is the unfortunate and cynical elimination of the so-called filibuster rule, in 2013 for inferior courts and Executive Branch appointments, and in 2017 for Supreme Court appointments. Requiring a super-majority for those appointments meant that the President usually had to give more consideration to his political opponents, the advice part of the Senate’s advice and consent role, and nominate persons with broader appeal. With the ending of the super-majority requirement, the idea of senators as senior statesmen working in the best interests of the country was diminished in favor of partisan politics.
As to Breyer making a “strategic retirement”, I wonder what a non-strategic retirement would look like. Even were the Constitution changed to provide a term limit for Supreme Court appointments, not all justices would serve the full term just as now they do not all serve until they die.
If terms limits were in place like I begrudgingly suggested -that is with Justices sitting for 18 year terms, each Presidential administration appointing 2 (1 per election cycle) – I could see a safeguard in place should a justice die or find a compelling reason to retire – that either the seat remains vacant until after the next Presidential election or the President could appoint and Senate approve a temporary Justice until after the next Presidential election.
I don’t know. I’d still prefer our current system. But our current system has to be repaired structurally at the Legislature – it is imperative the House is quadrupled (or more) – and I’m also begrudgingly accepting the (obviously impossible) need to break up the larger states so the Senate can reform. And our current system must be repaired culturally at the Legislature – Americans need to stop insisting that political parties try to solve every single problem at the National level and start solving things at the State level again.