Sunday, January 30, 2022

Breyer to Retire as Court Is Set for Dramatic Changes

             The Supreme Court ended its 2006 term with a bitterly divided, 5-4 decision that limited school districts’ ability to design pupil assignment systems in a way to break down de facto racial segregation and engineer some measure of racial diversity in individual schools. Justice Stephen Breyer led the four liberal justices in dissenting from the decision in Parents Involved in Community Schools v. Seattle School District No. 1 (June 28, 2007).

            The majority in the case consisted of five Republican-appointed justices, including the two most recent appointees: Chief Justice John G. Roberts Jr., who wrote the main opinion, and Samuel A. Alito Jr., serving together for their first full term. The ruling effectively gutted a line of Supreme Court precedents that recognized the ill effects of racial imbalance in public schools and allowed or required steps to ensure racial balance in pupil assignments.

            From the bench, Breyer described his 72-page opinion as the longest dissent he had written in what was then his twenty-third term on the Court. He also added from the bench a trenchant line not included in the formal opinion. “It is not often that so few have so quickly changed so much,” Breyer remarked with ominous regret.

            Breyer finally yielded last week to the practical realities of retiring with a politically compatible president in the White House to nominate his successor and favorable political terrain in the Senate. He leaves with the Court’s muscular conservative majority set to change so much, even more quickly than the Roberts Court did in its first several terms.

            With six Republican-appointed conservatives, including President Trump’s three appointees, the Court appears ready to end the 2021 term with precedent-shattering decisions to limit abortion rights, to limit the ability of state and local governments to control permits to carry firearms in public, and to limit the ability of state governments to deny public subsidies to parochial schools.

            Breyer is likely to lead dissenting opinions in those cases on behalf of the reduced liberal bloc of three justices: himself, Sonia Sotomayor, and Elena Kagan. Breyer has publicly acknowledged that he has been grateful for the opportunity since Justice Ginsburg’s death to be the senior justice in the liberal bloc. He will retire at the end of the term in June at age eighty-three, the eighth oldest justice in history, and with twenty-seven years on the Court, the twenty-third longest tenure in history.

            The decisions likely to make headlines as the term ends will, unfittingly, amount to a repudiation of sorts to Breyer’s jurisprudence. He believes that the law evolves slowly, step-by-step, not by sudden leaps or reversals. In contrast to the conservative bloc, Breyer is a committed pragmatist, who has no brook for the blind-to-consequences originalism and textualism that the conservatives espouse.

            The three biggest decisions will solidify the Court’s role over the past decade as an instrument of Republican Party policies: limiting abortion rights, expanding Second Amendment rights, and increasing legal and taxpayer support for religious schools.

            In the abortion case, Dobbs v. Jackson Women’s Health Organization, the Court appears likely to uphold a Mississippi law that bans abortions after the fifteenth week of pregnancy, in direct contradiction of the Court’s Roe v. Wade line of decisions that guarantee a woman’s right to terminate a pregnancy until later in the pregnancy when the fetus is capable of surviving outside the womb. As Ginsburg’s unfitting successor, Justice Amy Coney Barrett, an outspoken critic of abortion rights decisions, has given anti-abortion forces confidence that this is the year when Roe v. Wade is formally overruled.

            There is no practical need to revisit Roe v. Wade, issued in 1973 as a compromise of sorts that legalized abortion nationwide but also allowed states to limit abortions in the late stages of pregnancy to protect the government’s interest in preservation of potential life. The Roe v. Wade viability line is relatively easy to apply, whether in medical facilities or in courtrooms.

            The gun rights case stems from a challenge to a New York law that requires applicants for a concealed carry permit to show “proper cause” for needing go carry a firearm outside the home. This case, New York State Rifle and Pistol Ass’n v. Bruen, stems like the abortion case from persistent political lobbying and results-oriented legal scholarship to throw out settled law and settled practice in regulating firearms.

            The parochial schools case, Carson v. Malkin, stems from a challenge to a Maine law that provides tuition subsidies to students attending private schools in areas with no public schools but denies those subsidies to students attending private, church-affiliated schools that provide religious instruction as part of the curriculum. In arguments in that case, Breyer warned, as he has done in other Establishment Clause-related cases, that government subsidies to religious organizations inevitably lead to sectarian strife of the sort that the First Amendment’s religion clauses were designed to prevent.

            In the abortion case, Breyer’s used his final colloquy to emphasize that the Court had seriously considered overruling Roe v. Wade back in the 1990s and in that case had reaffirmed Roe’s essential holding. Overruling Roe, Breyer warned, “would come at tremendous cost to the reliance that women have placed on this right and on societal reliance and what this right has meant for further ensuring equality.”

.           Even as he prepared to retire, Breyer reaffirmed his belief that his colleagues decide cases not on the basis of politics but solely on the law. In that regard, Breyer has been guilty of what the historian Jeff Sheshol called “willful naivete” in a guest essay published in The New York Times [Jan. 27]. Breyer is likely to be disabused of his rose-colored naivete as the conservatives run the table in June. .

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