The WaPo editorial board has responded to Stephen Breyer’s retirement by reaching deeply into its nostalgia file:
The first and foremost qualification is the opposite of what many progressive activists desire: a commitment to judicial independence. Supreme Court impartiality is an ideal that nine human beings, each with individual biases, who consider some of the toughest questions facing American society, will not meet. But the country is undoubtedly better off with justices who strive for that ideal, preserving the legitimacy of an institution at which a case’s merits and the force of an advocate’s arguments should prevail over judges’ private partisan or ideological commitments.
Some justices have remained mindful of this charge, even amid today’s white-hot partisanship. As a result, the court sometimes issues surprisingly non-ideological rulings reflecting unexpected alliances among the justices or efforts to forge compromise across the court’s divisions. At other times, however, justices issue decisions geared to achieve particular ideological ends or are otherwise inconsistent with the court’s traditions. In recent years, Justice Breyer, 83, has argued publicly that Americans should not see the court as a partisan institution, but one in which justices try to apply in good faith Congress’s instructions and the Framers’ constitutional commands. Though solidly in the court’s liberal wing, he has often sought to diminish the role that ideological differences play in the court’s decisions. It would be fitting for his replacement to share his overriding commitment to these principles.
How either Breyer or his hypothetical younger clone could unilaterally “diminish the role that ideological differences play in the court’s decisions” is…not explained, but the beauty of Murc’s Law is that explanation is unnecessary.
Breyer, at long last, apparently understands where this is inexorably headed. Other establishment elites will apparently remain convinced that the Potter Stewart or Sandra Day O’Connor can be the median vote and the Court can produce just enough liberal rulings to keep things respectable again if liberals just talk about the sacred importance of a legitimate and independent court enough.