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Stephen Breyer is doing a terrible job


As I’ve noted elsewhere, the pragmatic argument for Stephen Breyer’s immediate retirement is unassailable. But if any further justification were needed for that decision, Breyer himself is providing it with his increasingly bumbling performance.

During Wednesday’s oral arguments in Dobbs, Breyer looked like a QB who was trying to throw the game to the other team. As Mark Joseph Stern points out, this probably didn’t end up mattering, given that the fix was largely if not wholly already in, but it was still a pitiful spectacle.

What Breyer did was focus his argument for not overruling Roe v. Wade on the extraordinarily weak and indeed frankly preposterous argument for not overruling the case put forth in the joint plurality opinion in Casey. That argument, crafted by Kennedy, O’Connor, and Souter, or more likely their clerks, was that the SCOTUS shouldn’t overrule a precedent under public pressure to do so, because that would make the Court look illegitimate.

It’s easy to see why this particular argument appeals to Breyer, since it’s the same one he’s using to cling to his sinecure. But it’s always been an absurd argument on its face. If the SCOTUS announces to the public that it’s not reversing a precedent because doing so would give the public the impression that the Court was bowing to public pressure, then the Court is obviously doing exactly what it claims not to be doing — that is, taking public opinion into account in regard to deciding how a case ought to come out. I mean this is so self-evident that it’s a testimony to how high these people are on their own supply that they can’t see the brazenly oxymoronic structure of this particular argument.

This, in other words, is the single worst argument for not overruling Roe and Casey — and Breyer spent many tedious minutes on Wednesday making it, oblivious to the fact that he was leading with his chin. (I can only imagine what the junior members of the Court’s liberal wing were thinking when he was droning on).

Again, it probably made little or no difference at the margin, but under the circumstances it was just absurdly perverse — a kind of jurisprudential Dunning-Kruger effect in action, as this country’s liberal gerontocracy continues to dodder into the maw of revenant authoritarian ethno-nationalism.

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