The Supreme Court agreed today to hear a Mississippi case that provides an ideal venue for striking down Roe v. Wade. Gaming this out is pretty straightforward: Thomas, Alito, and ACB will certainly vote to overturn Roe, and I doubt that any of them will sign on to some sort of compromise opinion. Roberts obviously doesn’t want to overturn Roe, so the question then becomes whether he can convince either Gorsuch or Kavanaugh or both to sign onto some sort of plurality opinion mishmash about how Roe is still a “binding” precedent, but it’s a special sort of precedent that has to be treated differently from what has previously been understood to be its explicit holding, which in turn doesn’t mean overturning it, but does mean re-interpreting it to allow this and that restriction but not this other one over here. So basically Casey redux but with a much more explicit right-wing slant and practical result.
In a propitious bit of timing, the Times published a story this morning about how Breyer may well not retire at all, because that would make the Supreme Court look (avert your eyes children) political:
Justice Breyer has been particularly adamant that politics plays no role in judges’ work, and he recently suggested that it should also not figure into their decisions about when to retire.
“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”
In the speech, a version of which will be published in September as a book called “The Authority of the Court and the Peril of Politics,” Justice Breyer said that the odor of partisanship damages the judiciary.
“If the public sees judges as politicians in robes,” he said, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”
Artemus Ward, the author of “Deciding to Leave: The Politics of Retirement From the United States Supreme Court,” said Justice Breyer might stay on to shield the court from charges of partisanship.T
“Breyer is a justice who is with the chief justice in trying to protect the institution,” said Professor Ward, a political scientist at Northern Illinois University. “Justices care about the court, and the court is arguably very vulnerable right now.”
“This is a guy who I believe is not going to retire,” he said of Justice Breyer.
All this is so nonsensical it’s hard to even know where to start.
The claim that courts can decide politically controversial cases non-politically would be, one would think, an oxymoron on its face, but one would be very, very wrong about that.
I actually don’t doubt for a second that Stephen Breyer sincerely believes what he’s saying, which is a tribute to among other things how much apparently irreversible brain damage can be caused by an elite legal education.
Let’s keep this super simple for illustrative purposes. Should judges decide cases by giving more weight to doing justice in the context of the individual matter before the court, or should they give more weight to maintaining consistent and predictable legal rules across cases? (These things are obviously going to be in tension all the time).
Here’s the answer the formal rules of our particular legal system at this historical moments give to this — incredibly simple and straightforward! — legal question: Yes.
But here’s the really funny thing (not funny like a clown): Even if our legal system actually answered this question in a non-controversial and unambiguous way — if legal formalism actually worked, in other words — that non-controversial and unambiguous answer would still be every bit as political as any other answer you could give, because choosing to adopt a rule, even at the most systemic and generalized institutional level, that values justice in the individual case more or less — or just exactly as much! — as maintaining consistently applicable rules across cases is itself a political choice. All the way down to the last turtle!
Now excuse me but I need a drink.