You may remember Noah Feldman from such arguments as “The Supreme Court that has been afflicting the powerless and comforting the powerful for 50 years is awesome” and “Amy Coney Barrett is awesome” and “Cooley and the New England School of Law leaving students with hundreds of thousands of dollars in debt in exchange for worthless degrees is awesome” and “Neil Gorsuch is awesome.” He’s back with another Lisa Blatt Law Brain Disease comedy classic:
But here’s the thing: Breyer knows these facts already. He is the one of the great pragmatist justices ever to have sat on the Supreme Court, following in the footsteps of Justice Louis Brandeis. Breyer also knows Capitol Hill, having worked there three separate times: once on the Watergate investigation and twice for the Senate Judiciary Committee. He can be trusted to do the right thing – provided liberal law professors don’t box him in by declaring that he “must” resign.
Throughout his career, Breyer has believed that ideology and party are far less important than clear thinking and smart regulatory policy that makes people better off without costing more than it is worth. This perspective has come through in his extensive writing and lecturing, where he has emphasized that judges are not and must not be considered partisan political actors. If Breyer has an ideology, it is the rejection of ideology in favor of pragmatism.
So it is absolutely essential for liberals to stop lecturing the man about it being his time to go. Every column or television comment — the more prominent, the worse — traps Breyer into having to stay out so as not to appear to be acting as a partisan.
This is incoherent nonsense but telling incoherent nonsense. Feldman continues to dance between almost acknowledging that the Supreme Court is a highly political institution that given contemporary polarization is also a highly partisan one, pretending to believe that it is possible for a Supreme Court justice’s only ideology by “partisan,” and generally landing on a sort of centrist Straussianism that it’s important that the public see the Court as nonpolitical so it can have the freedom to perform such critical democratic functions as, er, reaching out to destroy the Voting Rights Act and take healthcare away from millions of poor people based on arguments with no textual or doctrinal foundation while arguing that it is beyond the power of the federal judiciary to stop legislators from ending democratic elections for the state legislature.
And, very quickly, some contradictions will occur to you. If it would “look bad” for Breyer to want to be replaced by a justice nominated by a Democratic president, what does that say about the typical justice who retires strategically, and does that undermine Feldman’s claims about the Court as an apolitical institution, or how the public should pretend to believe the fairy tale that the Court isn’t a political institution, or whatever version we’re getting this week? Are John Paul Stevens and David Souter lawless for wanting to be replaced by justices who share their basic worldview? Does Stephen Breyer lack moral agency? Why does Feldman keep again and again returning to write columns with arguments that no intelligent person, including Feldman himself, could possibly believe?
Anyway, as a legal academic argued recently:
Nothing illustrates the anti-democratic dysfunction of our political system more clearly than the current makeup of the Supreme Court. Two-thirds of the sitting justices were nominated by Republican presidents, even though Republican presidential candidates have lost the popular vote in seven of the nine elections, which determined who nominated these justices.
And these justices were confirmed by a Senate that has become skewed so radically in favor of electing Republicans that the 50 senators who caucus with the Democrats represent about 41.5 million more Americans than the 50 Republican senators do.
Under the circumstances, it would be a travesty if the Supreme Court seat occupied by Justice Breyer was not filled by a replacement chosen by Democrats.
He should announce his retirement immediately, effective upon the confirmation of his successor. For him to continue to make the same gamble that Justice Ginsburg made and lost runs the risk of tainting his legacy as a justice and has the potential to be an anti-democratic disaster for the nation as a whole.
…”meritocracy” is a hell of a drug:
You, a fool: Justice Breyer should retire because the welfare of millions of people hinges on the timely confirmation of a successor.
Noah Feldman, wise: He won a Marshall Scholarship! He's so smart! pic.twitter.com/pa8kF5PS7l— Matthew Yglesias (@mattyglesias) March 16, 2021