Jan 27, 2022
Breyer leaves a court more conservative than one he joined
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The court’s rapid rightward shift in recent years was a change for the liberal jurist, who early in his career sat with the same group of eight other justices for more than a decade.But Breyer, who announced his retirement Thursday, said repeatedly that the court should not be seen as political. Judges, he liked to say, are not “junior-league politicians.”
In recent years, as his more moderate colleagues were replaced by more conservative ones, Breyer seemed in public to maintain his good-humored nature. But there were occasional glimpses of frustration that he couldn’t get conservatives to see things from his point of view, and that the court was moving too quickly to the right.
Those frustrations surfaced in 2007. It was a year after the departure of Justice Sandra Day O’Connor, the court’s first female justice and a moderate who was replaced by the more conservative Justice Samuel Alito. Breyer had found himself on the losing end of a string of 5-4 rulings during the term. He was grim.
“It is not often in the law that so few have so quickly changed so much,” Breyer said while summarizing his dissent from a decision that invalidated public school integration plans.
In short, Breyer missed O’Connor’s moderate influence.
In 2018, when she announced that she had been diagnosed with the beginning stages of dementia, he wrote in a tribute that the years they served together were “so happy for me.”
Breyer enjoyed a period of incredible stability his first decade on the court with no changes in the court’s makeup.
In that era, O’Connor was at the ideological center of the court and it was often her views that controlled the outcomes in close cases. But the conservative majority at the time also included Anthony Kennedy, another moderate, along with Clarence Thomas, Antonin Scalia and Chief Justice William Rehnquist. Breyer’s more liberal colleagues were John Paul Stevens, David Souter and Ruth Bader Ginsburg, who like Breyer was nominated by President Bill Clinton.
Jonathan Molot, a clerk for Breyer during his first year on the Supreme Court, said the court then may have been divided between five liberals and four conservatives, but there was still “a little more fluidity.”
It was a court where being “optimistic about human nature, being able to see the other side’s perspective, being able to communicate on good terms with everyone I think made a genuine difference,” he said. That was Breyer, he said, who was liked by his colleagues regardless of judicial philosophy.
The composition of the court began to change in 2005, however, when O’Connor announced her retirement. Soon after, Rehnquist died of cancer, leading to the confirmation of Chief Justice John Roberts. Kennedy became the new ideological center of the court.
While Kennedy was more conservative than O’Connor, there were still times when he was willing to join his more liberal peers to form a majority. And even Roberts sometimes joined with the court’s four liberals, voting in 2012 to uphold President Barack Obama’s health care law, for example. Liberals also won major gay rights cases with votes from Kennedy, culminating in the 2015 case in which the court said gay couples had a right to marry nationwide.
But deaths and retirements over the past six years have transformed the court more fundamentally.
First came the unexpected death of Scalia in Texas in 2016. Replacing a conservative justice during Obama’s presidency might have been expected to make the court less conservative. But Republican senators held the seat open until after the 2016 presidential election. And instead of a Democrat selecting Scalia’s successor it was a Republican, Donald Trump, who chose conservative Neil Gorsuch.
Gorsuch’s confirmation didn’t change the balance of the court, but Kennedy’s retirement in 2018 did, when he was succeeded by the more conservative Brett Kavanaugh. The death of Breyer’s friend Ginsburg in 2020 was even more consequential. The liberal justice was replaced by Amy Coney Barrett, giving conservatives a 6-3 advantage on the court.
Already in recent months the court’s conservatives have let a restrictive Texas abortion law take effect and kept Biden from enforcing requirement that employees at large businesses get vaccinated against COVID-19 or test regularly or wear a mask on the job. Breyer opposed both outcomes. Before he leaves at the end of the term the court has also signaled it could overturn the nationwide right to abortion that has existed for nearly 50 years.
The American public has increasingly negative views of the court. In September, a Gallup poll found 54% said they had “a great deal” or “fair amount” of confidence in the Supreme Court, down from 67% in 2020. Only one other time in five decades has that confidence fallen below 60%.
In remarks Thursday at the White House, Breyer described America as a “complicated country” and an “experiment that’s still going on.” He said future generations would ”determine whether the experiment still works. And of course, I’m an optimist, and I’m pretty sure it will.”
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Republican pleas to save the children are cheap, cynical politics at their worst: conservative
The term “Lovejoy’s law” became part of pop culture in the United States when, in 1996, Helen Lovejoy — a fictional character on the animated comedy “The Simpsons” — pleaded, “Won't somebody please think of the children?” It was biting satire that brilliantly mocked politicians who cynically use children for political gain. Never Trump conservative Tim Miller, in an article published by The Bulwark on May 16, slams the Republicans of 2022 for invoking a MAGA version of “Lovejoy’s law” and doing it without an ounce of shame.
But while Miller considers it shamelessly “demagogic” to invoke “Lovejoy’s law,” he also acknowledges that it’s effective.
“In 2022, the GOP has been enthusiastic in their reanimation of ‘Lovejoy’s Law,’ that fallacious appeal to emotion which implores someone, somewhere to just please think of the children,” Miller explains. “This little bit of platitudiny — memorialized in The Simpsons episode ‘Much Apu About Nothing’…. has been employed by political mobs demanding they get their way for as long as there has been politics. The demagogic and simple-minded of all ideological stripes fall back on this argument because, frankly, it works. Children are vulnerable and lovable.”
“Lovejoy’s law,” according to Miller, has “become the central animating feature of America’s nihilistic and demagogic political party.” The party he is referring to is the GOP.
Miller himself is a former Republican, but like other Never Trumpers, he turned against the GOP in a big way thanks to former President Donald Trump and the MAGA movement. And the Republicans of 2022, Miller complains, have cynically made “Lovejoy’s law…. central to” their “messaging.”
“Today, Republicans claim that ‘the children’ must be protected from all manner of things: groomer teachers, ‘critical race theory’ making them feel bad about their whiteness, books featuring gay penguin daddies, revelations that some families might be different from theirs, and, most of all, a shadowy cabal of child predators who meet in the basement of a pizza joint, and frazzledrip the skin from babies faces so as to maintain a youthful visage for themselves,” Miller observes. “None of these threats come anywhere near the importance the GOP places on them, of course. Many don’t exist at all. But they do confirm the prior worries of an audience who fears that they might, which is the important part.”
Miller is especially critical of Rep. Elise Stefanik of New York State, who now chairs the House Republican Conference and is the third highest ranking Republican in the U.S. House of Representatives. The Stefanik of the early 2010s was a moderate conservative along the lines of Sen. Mitt Romney, Maryland Gov. Larry Hogan or the late Sen. John McCain, but she has since flip flopped and gone full MAGA — which is why House Minority Leader Kevin McCarthy and House Minority Whip Steve Scalise wanted her to replace Rep. Liz Cheney of Wyoming as House Republican Conference chair. And Stefanik showed how MAGA she has become with a sleazy reference to “The White House, House Dems, & usual pedo grifters” in a recent tweet.
Stefanik posted:The White House, House Dems, & usual pedo grifters are so out of touch with the American people that rather than present ANY PLAN or urgency to address the nationwide baby formula crisis, they double down on sending pallets of formula to the southern border. Joe Biden has NO PLAN — Elise Stefanik (@Elise Stefanik) 1652467938
In response, former federal prosecutor Joyce White Vance — who is often featured as a legal analyst on MSNBC — called Stefanik out for debasing herself, tweeting:I\u2019m embarrassed for you — Joyce Alene (@Joyce Alene) 1652498399
Stefanik, Miller writes, is “simply making an appeal to her mob’s emotion.”
“Whether it’s roaming bears, or critical race theory, or gay teachers, or high taxes, or, inevitably, illegal immigrants, the call to think of the little pedos is never meant to actually solve any problems,” Miller emphasizes. “It only exists to give the intended audience their latest little bottle of rage-milk, so as to help sustain them one more day. So, you tell me who the pedo grifter perp in this story really is.”From Your Site Articles