Breyer Announces Retirement

First, Oklahoma executed Donald Grant for murdering two people in a robbery over two decades ago. I'm not horrified, but still find it without much of a useful purpose. It's not as close as a call as some, but others as bad or worse will not be executed. And, the lethal injection protocolo (as noted in his brief) is dubious in practice in Oklahoma.

Then, there was an official announcement of Breyer's retirement, his letter dropped earlier. He will stay until the end of the term, "assuming" his replacement will be confirmed by then. The wording of the letter also appears to suggest he will take advantage of a privilege to retain the "office" of a justice by doing work in the lower courts. 

We also continued to have some good coverage of Breyer's career, including from two liberal court journalists which also provide some links for further reading.  Like Prof. Leah Litman (who just got tenure and is a strong voice on Strict Scrutiny Podcast) tweeting today, both articles provide a reminder that Breyer was an excellent public servant. Now, he very well might have past his time, but that is another matter. 

The Vox article provides a favorite summary from Breyer's book Active Liberty, which is a lot more realistic (if vague) that originalism or some simplistic textualism:

“All judges use similar basic tools to help them accomplish the task” of interpreting such a text, Breyer wrote. Judges “read the text along with related language in other parts of the document.” They consider the text’s “history, including history that shows what the language likely meant to those who wrote it.” Judges “look to tradition” indicating how this language is used in the law. They must take into account previous court decisions and other important precedents, and “try to understand the phrase’s purposes” or “the values that it embodies.” And they “consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.”

Also, one of those links is to recently deceased Lani Guinier discussing the ability of judges to speak directly to the public about certain issues, highlighting Breyer's dissent in Parents Involved.  The opinion is but one where Breyer trusts the expertise of other branches of government, including administrative agencies and sentencing commissions. 

The other (shorter) article is from RBG, largely talking about the value of reasoned decision making, including in dissent.  It ends with her general argument about Roe v. Wade, which tries to do too much (she compares it to Brown as being less based on precedent; there is a long summary of such precedent, even beyond the concurrences).  I am more supportive of the idea Roe went too fast than stuff (written in the early 1990s) about how legislatures -- when even New York only had abortion rights with a government veto -- were ready to change the law anyways. 

The general idea is that Breyer supports negotiation, trying to get something, even if it means needing to go along with some stuff he doesn't like.  A prime case tossed out there was the PPACA (not Obamacare! the SCOTUS had a page labeled with the actual name!) where there appears to have been some sort of deal where Breyer/Kagan accepted striking down mandatory Medicaid expansion in return of getting the individual mandate (and the Vox article notes, perhaps something more, Roberts perhaps ready to only accept part of the law even if he signed on to the tax portion) upheld.  Given his druthers, he surely would not sign on to the coercion portion.  

But, Breyer -- from his time working in Congress -- is a deal maker.  Now, the value of that NOW is dubious.  It remains a useful approach though I also like to have some people who are less inclined to do so.  You need a diverse group on the courts, both in style and personal characteristics like black women.  Breyer's overall optimism at this point might seem too naive at times.  That too overall is a nice approach.  And, like Prof. Litman tweeted, he is seen as overall a nice person.  

President Biden says he will have a name by the end of February.  Jen Psaki in response to a question yesterday said he received the Presidential Supreme Court Commission report and is examining it.  Okay.  Well, again, while this confirmation process is front and center, let us not only honor the precedent being made here, but the wider court issues involved.  

ETA: Here is the link to the official press release and kind words from his colleagues.  Kagan's is sweet, Thomas' is touching too (long colleagues, often sitting next to each other), Roberts' is charming too, and Souter has another nice brief comment.  Gorsuch's reference to "our" law instead of just "the law" annoys me since Breyer (including with a book) has emphasized his belief in the international nature of the law.  

To partially quote the show Friends, this does seem to be "the end of an era."  Thomas is the only justice left from pre-2000 after Breyer leaves.  Kagan has some of his optimism (though Sotomayor might too -- she always puts it on in public appearances, her public persona, even if on the bench, she comes off more truth-teller)  and coalition building spirit.  

And, I don't know the vibe of the next person, obviously, but a newbie will probably take time to get her feet wet anyway.  We have truly reached Trump Court (or six person conservative / use your adjective) status.  The band-aid is already off.  I think saying he played "hardball" (Dahlia Lithwick) is a bit much there.  Yes, like others, it was a strategic retire.  

[The short ceremony is fairly atypical though his predecessor didn't have one totally different.  One professor said he thought it was not really appropriate, comparing it to Stevens' opposition to having a swearing in at the White House.  But, that is a ceremony introducing a justice to the Court. This is less of an official event, and is more appropriate as part of the notification of the resignation.  I think it's okay.]

"Hardball" suggests some special amount of strategic action. I think retiring now makes basic sense without a matter if being obviously trying too hard.  He waited a year (like Kennedy, but there you also had another seat, and they have a policy of trying to do it one at a time) to show some respect.  He promoted his book, selling the "above the politics" nature of the Court.  He can wait longer, but why? Did Kennedy?  

What about retiring in February?  That seems a bit early to announce, though one reporter flagged remembering Justice White did it.  Who knows why he timed it now.  After recent nominations, adding more time to avoid delays (Kavanaugh missed the very beginning of the term) makes sense. He very well might have been affected by pressure and the political situation.  Again, his overall pragamatism should factor that in.

Anyway, as the "friendly one" (his name for Leah Litman when she was a clerk) and others noted, it was charming to see him and all the nice words said about him.  It is bad to need to badmouth in any way decent people (I don't even like people who can't admit Thomas has some good qualities and get why they do), including the RBG.  He is very decent and an appropriate ending of this entry is Kagan's statement:

I’ll miss Steve Breyer every day after he has left the Court. He is a brilliant and wise judge whose vision of law will remain of great importance. He is the best possible colleague. He believes in making institutions work; to strengthen this one, he listens to other views with care and generosity, and does everything he can to find common ground. And he is the best possible friend. He is kind and warm and funny. He has boundless optimism and a great heart. I can hardly imagine the Court without him.

RBG died wishing President Hillary Clinton nominated her replacement.  Breyer got his wish, even if he didn't want to go -- his former congressional colleague (of sorts), someone like him in various ways, replaces him, and likely will be a former clerk.  That should go down better than the last time that happened.  (Kennedy/Kavanaugh)