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Wednesday, May 19, 2021
The Court is Not Worried About Court Packing
I think that's the main takeaway from the certiorari grants on the Second Amendment and abortion. If the Court thought that some legislation from Congress was on the table, they would have denied review in those two cases. Justice Breyer may be the only one worried about Court-packing, based on forthcoming book.
Let me add one dull (but probably accurate) point about Justice Breyer's potential retirement. He probably just doesn't want to retire in an abnormal year. He may want to serve for one more normal year where arguments happen in the courtroom, he can be in his chambers with his clerks, etc.
Posted by Gerard Magliocca on May 19, 2021 at 08:01 AM | Permalink
Comments
Contrary to what anon says, I think Justice Breyer is a quite humble fellow, certainly relative to his remarkable achievements as an academic, policymaker, and judge, but even in absolute terms. If he doesn't retire quite as soon as some people would like, it won't be out of vanity. No current Justice is as willing to admit the limits of his knowledge and expertise or defer to people who know more about something than he does, even though he knows more about more things than most of his colleagues. I think his manner at argument is often badly misunderstood as reflecting a kind of professorial arrogance, when he is simply using argument to share his often complex and tentative thinking about a case with counsel and get their responses to it in a commendably transparent and above-board way.
Justice Ginsburg, on the other hand, appears to have begun her tenure on the Court as a reasonably grounded person, but by the end of it had patently succumbed, to no small degree, to the cult of personality that had developed around her, saying rather ridiculous things in interviews about how it would be impossible for Obama to replace her with anyone as good. Happily, nothing of the kind has happened to Justice Breyer, though he's probably as deserving of celebration as any liberal-leaning Justice we've had since Brennan.
Posted by: Asher Steinberg | May 19, 2021 8:36:53 PM
آموزش شرط بندی بازی های دورهمی که سود های بالایی هم دارند
اخراج رونالد کومان از بارسلون و نیز ماجرای وام 500 میلیون یورو بارسلونا
سه گانه لیگ برتر تیم های برتر منچستر یونایتد ، منچستر سیتی ، چلسی
Posted by: customessaytw.com | May 19, 2021 2:37:41 PM
Unfortunately, I think some folks on the Court are in fact worried about packing ... but only when it comes to the availability of open carry.
Posted by: hardreaders | May 19, 2021 12:02:59 PM
Sandy Levinson, over at Balkinization, says Ginsburg "had become simply a form of megalomaniac at the end, encouraged to accept the view of her acolytes that she was truly indispensable and irreplaceable" and that presumably informed her failure to step down during Obama. Sandy tries to characterize Breyer's pretense as ideologically motivated, but that strikes me as mistaken. He is at least as pompous as Ginsburg, and perhaps a good deal more.
If Breyer is going to create a vacancy for Biden to fill, friends of the Biden administration had better persuade him to move on soon. The 2022 midterm elections and the cyclical midterm election loss for the President's party suggest that a July 2021 announcement would be best for a jurisprudentially simpatico replacement. A July 2022 announcement is too late and leaves too much to chance, especially with the inevitable sandbagged character flaws/outright failures that could delay or derail a nominee's replacement. Garland is well vetted already, but Biden has committed to promoting diversity on the bench, which suggests nominees not yet subjected to the glare of the bright lights of the SCOTUS confirmation process. Breyer needs to get over himself and move on.
Posted by: anon | May 19, 2021 10:59:27 AM
That would be an asinine reason to wait another year, which to me very well might just aggravate the very concerns he is allegedly worried about. We also don't quite know the dynamics -- likely his clerks do stop by his home and so on. Plus, the Court is open now. If he wants to have a special retirement ceremony, that would be a nice way to close things out.
The Supreme Court deciding two major divisive constitutional questions isn't going to improve partisan divisions too much.
He can retire now (before the Supreme Court commission -- which has its first public hearing today -- has its findings) and things will be focused on replacing him (President Biden promised a black woman justice). This can be a fairly normal thing, which will likely please some critics of the Court, who will find his replacement copacetic.
Posted by: Joe | May 19, 2021 10:29:07 AM
Well, it is hard to believe that it is really so. The point may be, that a precedent, needs further interpretation, or, simply adjustment with current phase or new reality.
Many times, split between circuits courts necessitate it. The court can't then consider hypothetical prospective legislation.
Thanks
Posted by: El roam | May 19, 2021 9:28:19 AM
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