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What goes around and goes around and goes around and…I’ll come in again

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Stephen Breyer has a book to promote, which means he has to give interviews in which he tries to pretend that the extremely easy question about whether he should have retired already actually presents many complexities, with grimly hilarious results:

U.S. Supreme Court Justice Stephen Breyer has a warning to those who want to remake the court: Be careful what you wish for.

In his new book, The Authority of the Court and the Peril of Politics, Breyer argues that over time, public acceptance of Supreme Court opinions, even those you may disagree with, has become a habit — a hard-won habit that has fortified the rule of law as an essential part of U.S. democracy.

And he points to what former Senate Democratic leader Harry Reid said about Bush v. Gore when the Supreme Court effectively ruled that George W. Bush had won the presidential election.

“He said the most remarkable thing about this case is, even though probably half the country didn’t like it at all, and it was totally wrong, in his opinion and in mine, people followed it, and they didn’t throw brickbats at each other and they didn’t have riots,” he told NPR legal affairs correspondent Nina Totenberg.

But Reid’s observation in 2000 did not match the reality of the 2020 election: Then-President Donald Trump thumbed his nose at the court and Congress, leading to the storming of the U.S. Capitol on Jan. 6. That has led many liberals to call for a radical change in American institutions, including the Supreme Court.

Breyer’s view: “What goes around comes around. And if the Democrats can do it, the Republicans can do it.”

Can do it? With a cycle starting with the Court legitimizing an election theft with a laughably indefensible decision — a moment Breyer considers worthy of celebration because they got away with it — Republicans refused to allow a majority-elected president to fill a Supreme Court to hold it for a minority-elected one. They got another seat because Anthony Kennedy, unlike Breyer or Ginsburg, had no qualms about strategic retirement, and rushed through a last-minute third after RBG’s reckless, vain gamble failed spectacularly. It’s been done. There is not actually any constitutional difference between manipulating the composition of the Court with the advice and consent power and manipulating it with the Article III powers.

It is true that court-packing would ultimately undermine the prestige and power of the Court, but this is a feature, not a bug. The Supreme Court is not entitled to any fixed degree of legitimacy; if it constantly abuses its authority its legitimacy should diminish. Why should a Court that overturns the most important civil rights statute passed since Reconstruction and helped rig a presidential election and a overrules landmark precedent that entails massive reliance interests with an unreasoned pseudo-opinion at midnight on a Wednesday be held in high public esteem? And why on earth would Breyer think that being replaced by a Republican would help matters?

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