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Justice Breyer on retirement and the role of politics in the Supreme Court

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Justice Breyer on retirement and the role of politics in the Supreme Court

Washington – Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is looking at a number of factors, including the name of his successor. “There are many things that go into a retirement decision,” he said.

He remembered accepting what Justice Antonin Scalia had told him.

“He said, ‘I don’t want to hire someone who will reverse everything I’ve done over the past 25 years,'” Justice Breuer said during an extensive interview Thursday. “That would essentially be in psychology”, he said.

“I don’t think I’m going to be there until I die – hope not,” he said.

Justice Breyer, 83, is the court’s oldest member, a senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden succeeds his successor. Can name.

Justice tried to reconcile the factors that would go into his decision. “There’s a lot of blurry stuff out there, and there’s a lot of ideas,” he said. “They make up a whole. I’ll decide.”

He paused, then said: “I don’t like making decisions about myself.”

Justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” to be published next month by Harvard University Press. This prompted questions about the size of the court, the so-called shadow docket and, inevitably, the expansion of his retirement plans.

The book explores the nature of the authority of the court, saying it has been undermined by labeling it as conservative or liberal. Distinguishing between law and politics, Justice Breuer wrote that not all divisions in the court were predictable and that could usually be explained by differences in judicial philosophy or interpretive methods.

In interviews, he acknowledged that politicians who turned confirmation hearings into partisan disputes had a different view, but noted that judges acted in good faith, often found consensus and sometimes in critical cases. surprised the public.

“Didn’t one of the most conservative – quote – members get involved with the others on the gay rights issue?” He asked in the interview, last year Justice Neil M. Referring to Gorsuch’s majority opinion that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

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Justice Breyer has explained this point more extensively in his new book. “My experience of over 30 years as a judge has shown me that anyone taking the judicial oath takes it to heart,” he wrote. “A judge’s loyalty is to the rule of law and not to the political party that helped secure his appointment.”

It may suggest that judges should not consider the political party of the president under which they retire, but Justice Breyer rejects that position.

He was asked about a comment by Chief Justice William H. Rehnquist, who died in 2005, in response to the question whether “it was inappropriate for justice to take into account the party or politics of the incumbent president, when Deciding what steps to take” is down to the court. “

“No, it is not unreasonable,” replied the former Chief Justice. “It is not a judicial function to decide when to step down from the court.”

This seemed right to Justice Breyer. “It’s true,” he said.

Progressive groups and many Democrats were angered by Senate Republicans’ failure to hear President Barack Obama’s third Supreme Court nominee, Judge Merrick Garland, in 2016. That anger was fueled by Justice Amy Connie Barrett, President Donald J. The eventual downfall of Trump’s third candidate was further exacerbated by the confirmation, weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr Trump lost his bid for re-election.

Liberals have pressured Biden to answer what they say is this hardball: expanding the number of seats on the court to overcome the now 6-to-3 Conservative majority. Mr Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing tenure limits on judges.

Justice Breyer said he was wary of attempts to increase the size of the court, saying it could undermine public confidence by sending the message that the court is a political institution at its core and could result in a tit-for-tat race. is in. Down.

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“Think twice, at least,” he said of the proposal. “If A can do it, so can B. And what do you have when you’re doing A and B?”

Such a judicial arms race, Justice said, could undermine public confidence in the court and endanger the rule of law. “Nobody really knows, but there’s a risk, and how big a risk are you willing to take?” he said.

“Why do we care about the rule of law?” Justice Breyer added. “For the law is a weapon—not the only weapon—but a weapon against tyranny, autocracy, irrationality.”

The term limit was another matter, he said.

“It has to be a long-term one, because you don’t want the person there to think about their next job,” he said.

He said the limitation of tenure would also be a silver lining for judges who decide to retire. “It will make my life easier,” he said.

Justice Breuer said the court should decide on emergency applications less on its “shadow docket,” in which judges often issue consequential decisions based on thin briefings and not oral arguments. Recent examples were the decision on Tuesday that the Biden administration could not immediately repeal Trump-era immigration policy and a decision issued hours after Mr.

In both, three moderate judges disagreed.

Justice Breyer said the court should take its foot off the gas. “I can’t say never settle the shadow-docket thing,” he said. “No, never. But be careful. And I’ve said that in print. I’ll probably say it more.”

Asked whether the court should reason while making such decisions, he said: “Correct. I agree with you Correct.”

He was in a characteristically expansive mood, but he wasn’t too keen on discussing retirement. In fact, his publisher had circulated basic rules for the interview saying he would not answer questions about his plans. But he was finding it hard to make one thing clear: he is a realist.

“I have said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living on Pluto or anything.”

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