Fundamentally Broken

Yesterday we all heard the announcement that Justice Stephen Breyer is retiring from his seat on the U.S. Supreme Court.  Although Justice Breyer has been a valuable member of the Court for more than 20 years, almost 30, it was the right decision and likely one that, much as I loved her, Justice Ruth Bader Ginsberg should have made several years prior to her death.  It is a sad statement of our current situation that the Court has become a political pawn … the framers of the Constitution did not intend that at all.  Jennifer Rubin has written an editorial that I think sums up the situation quite well …


This is not how the Supreme Court is supposed to work

By Jennifer Rubin

26 January 2022; 2:50 p.m. EST

The announcement that Justice Stephen G. Breyer will retire from the Supreme Court came as a relief to Democrats and defenders of democracy. The reaction is certainly not because Breyer has been a negligent jurist or because he failed to defend our democratic institutions. To the contrary, he has been a model member of the court — conscientious, thoughtful, decorous.

So why are those who admire Breyer the most cheering the loudest? Because President Biden, with his a bare majority in the Senate, will be able to name a replacement who might prevent the further diminution of the court’s stature.

Think how bizarre that is. We take for granted in our cynical political environment that Democrats will react to news of Breyer’s retirement with relief — or even joy. But this actually highlights the degree to which the Supreme Court has lost credibility and has ceased to function as an impartial interpreter of the law.

We know a Republican-controlled Senate would not confirm a Biden pick. We know Breyer could have stayed on the court longer if not for his concern that he would be replaced by a radical partisan, or that his seat would be left open until a GOP president and Senate could replace him.

It is also clear that a Biden pick is needed to defend fundamental constitutional rights, as the court’s six-member majority has a different agenda: imposition of an ideological (if not theological) agenda from the bench. And that the right-wing majority is impervious to reason and appeals to precedent. Instead, it has pre-decided every case of political import and will reach a conclusion pleasing to their political patrons.

More things we can be sure of: During the Senate confirmation hearings for Biden’s nominee, Republicans will speechify about critical race theory, hypocritically denounce judicial activism and insist the nominee’s failure to agree with their ideological position on guns or abortion or whatever is grounds for opposing their confirmation. Republicans, after confirming GOP presidents’ nominees who refused to give a straight answer to scores of questions, will also complain the nominee has been evasive and, therefore, should be disqualified. Maybe the nominee will get a few Republican votes. Maybe.

This is no longer about picking jurists immune from partisanship to conscientiously decide cases; we have turned justices into political pawns. This stems from a determination by Republicans to deny Democratic presidents their choice of Supreme Court nominees while selecting and confirming justices who will be reliable partisans unmoored to precedent. In other words, partisan hacks.

Add in lifetime tenure, and each nomination becomes a battle to achieve partisan ends and secure them for as long as possible with younger and younger nominees. (Think about how that affects the quality and temperament of the court.)

It is hard to know how to fix a court that has lost so much credibility and is so out of step with the values of a healthy majority of the country. Limit its jurisdiction? End lifetime tenure? Increase the number of justices? Perhaps some of these would help guide the court back to more jurisprudentially defensible conduct, but none are realistic given that the GOP will refuse to give up trying to maintain its lock on the court.

The problem with the court is a manifestation of our problematic political system. One party has gone off the rails, divorced itself from reality and concluded it can defy democratic norms to impose its will on others. Thanks to the outsize power given to the right-wing minority in the Senate, as well as that minority’s shameless devotion to power politics at the expense of democratic values, that party can exert a stranglehold on our democracy.

Until we reform our system to return a proper balance between the minority and the majority, we will have one infuriating, anti-democratic episode after another (e.g., a filibuster of voting rights reforms, a forced retirement of a Supreme Court justice, a court that shreds women’s rights).

So by all means, Democrats should breathe a sigh of relief that Breyer did the “right” thing. But they do so because they understand all too well that the court — like our politics — is fundamentally broken.

28 thoughts on “Fundamentally Broken

  1. I’m a Brit, so please forgive me for failing to understand what is so good about this chap retiring? (I guess it’s because he’s a Republican, and thus can be replaced by a Democrat and so ‘rebalance the Supreme Court’ – but I don’t see anything here that makes that clear.)

    As for the headline: yep, seems to me that your ‘justice’ system is indeed fundamentally broken. But excuse me for voicing an opinion when it could be argued that I have no dog in this fight because I’m a Brit.

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    • No no no … he wasn’t a Republican nor even right-leaning … he was a very non-partisan and good Justice, in fact. The issue was his age … when a Justice retires or dies, it is the sitting president who chooses his/her replacement. The fear was that, like Ruth Ginsburg, he would die while still on the bench and that by then, a Republican president would be in office and would thus nominate another far-right Justice such as Trump did by placing Kavanaugh and Barrett on the Court. Most felt that Breyer had only a few more years, at best, and that it would be better for him to step down while President Biden is in office in hopes that Biden will appoint a moderate, sensible, non-partisan Justice to replace him.

      As for you voicing an opinion … I’m very glad you did! Quite often I find that you Brits see our situation more clearly than we ourselves do! I value your opinion always!!!

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        • In the beginning, when the Constitution was being drafted, the founders felt that having Justices serve for life (or until they decide otherwise) would keep politics OUT of the Court. The idea was they wouldn’t have to stand for re-election nor pander to the Senators to ensure their confirmation. But today, the whole thing has become as a tangled ball of yarn. Sometimes I think we should start over and re-write the Constitution taking into consideration how much things have changed over nearly three centuries.

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          • That does, sorta kinda make sense… assuming that the right folks are put in post in the first place. And as long as you don’t have sh*theads in power who bend the rules depending on whether they’re in power or not (a fairly recent farce about “precedent forbids appointment in the last x months of a presidency… unless we’re in power and we forget we said that” springs to mind).

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            • The problem is that we WOULD end up with shitheads in power. It’s all about money and power, and money BUYS power, so it’s really only about money. You’ve heard the expression, “He who has the most toys, wins”? Sadly, that is a fact of life in U.S. politics today. I’m afraid I don’t have much faith in our system to bring about equality and justice for the 90% of us who are not wealthy. This nation actually worships money and those who have it! Sigh. Were it possible, I’d move to your side of the pond in a heartbeat.

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  3. Another excellent share! Justice Stephen Breyer, during an address in the spring of 2021 to an audience at the Harvard Law School, said it best : “If the public sees the judges as Politicians in Robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a check on the other branches.” WHAK!! Thank-you!

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    • Thank you, dear Ellen! Stephen Breyer has been a valuable asset to the Court since 1994 and I really hate seeing him leave, but it is the right thing to do and the right time to do it. Right now, since the appointment of the three Justices the former guy put on the Court, I cannot help but see certain of the Justices as uber-political. Though surprisingly, Kavanaugh has come down on the side of justice a few times. We need a non-partisan branch of government, and that need will be felt more than ever if a Republican makes it into the White House in the next few years. Sigh. Somedays it is hard to be hopeful, but I try. WHAK!!!

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  5. (While I try to direct these comments to every American, I need to use the pronoun “you” to keep the flow of the text going. I never mean you in the singular, any particular person or reader. I use “you” ONLY in the plural, meaning “ALL AMERICANS IN GENERAL!” Please do not take anything as a comment directed to any one person.)

    One of the biggest things wrong with the Supreme Court is that it does not reflect the make-up of American society! There is a prepondance of white people, a preponderance of men, and presumably a preponderance of one particular religion. While many in your nation are more than okay with that heavily-weighted white Christian maleness, THIS IS NOT WHAT YOUR NATION LOOKS LIKE IN ANY WAY, SHAPE, OR FORM. When I look at The USI, I See white people, yes, but I see just as many black people, and that is not all I see. I also see red, yellow, and brown people (listed in no particular order!). Over half the population of the United States is not at all represented! Indigenous people, people whose forebears came from Africa, the Middle East, Asia, India, China, Japan, and elsewhere have absolutely NO REPRESENTATION on what is supposed to be the most important court in the land. AND NOBODY SAYS A DAMN THING!
    There are three women on the court. Does that reflect the gender-division in your country? Not at all! I have not seen the latest census results, but generally speaking women outnumber men most of the time. It may be a relatively small percentage, but it is persistent. When is the last time women outnumbered men on the Supreme Court? NEVER!
    Instead you argue politics. While I agree, in a two-party political system, politics might matter, but the SUPREME COURT in the land is SUPPOSED TO BE APOLITICAL! They are supposed to set aside any political affiliations when they walk into their chambers. But it seems many do not. And so you argue, and argue, and argue about politics…
    But meanwhile, you totally ugnore the fact the Supreme Court Justices do not reflect American Society! POLITICS IS A FALSE FLAG! Open your eyes, and understand everyone needs to be represented. There are two genders, There are 5 main racial group. And this is America, the country you call the MELTING POT OF THE WORLD! I see no melting pot. I see one group still trying to maintain its advantage over all other groups as if we were still living in 1776. This is the year 2022. Hardly anything has changed in the Supreme Court, while the racial mske-up of America is totally different now, and is changing more all the time.
    I believe it is time for America (and every other European-based nation in the world) to admit that white people are not the only people in their lands. And they are certainly not the superior race–ANYWHERE.
    It is time to make the Supreme Court of the United States representative of all its citizens, and that means two things. Upping the number of justices to 10, which are filled by 5 women and 5 men, AT ALL TIMES, but also by a representative of each racial grouping AT ALL TIMES, So 2 people of each race, one male, and one female. Write on their chairs, “This seat can only be filled by a (colour), and a (gender), until such time as colour and gender no longer dominate the social fabric of our beloved nation!” Until then, every citizen of the United States should have a visible representative of who they are sitting on the most impirtant court in the land!
    The above is my opinion, and only my opinion. The rest is up to you!

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    • I fully agree with all you say … the Court, just like Congress, does NOT reflect the makeup of this nation and never has. Hopefully, that is changing, but positive change seems to take a loooonnnnnnnggggg time. I have said many times that this is still a white male-dominated society and there are a large number of people who would prefer to keep it that way. In fact, many would like to revert to a time when “a woman’s PLACE was in the kitchen” and males ran the world.

      Until recently (the past 20-30 years) the Supreme Court was largely non-partisan, but that has changed over the last couple of decades and more than ever in the years between 2017 and 2021 when the so-called ‘president’ was, himself, a male chauvinist racist who defied law and order in his push to nominate three justices, two of whom are racist, bigoted nutcases. Gorsuch, I think, is a reasonable man, but Kavanaugh and Barrett are NOT qualified to sit on the Court!

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    • I agree. There was a time that I understood the reason for lifetime appointments to the bench, but much has changed over the last 20-30 years and now, lifetime appointments are actually, rather like the electoral college, doing the exact thing they were intended to prevent!

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    • There was a time when the Court was largely non-partisan and the Justices understood that politics should play no role in their decision making. Their loyalty was to the Constitution, not to a party or a person. But, over the years, that has been changing … and not for the better! You’re right … women’s rights, civil rights, voting rights … all are under the gun in this century and we rely on the Supreme Court to validate our rights, but … will they? I wish I felt more confident!

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    • You’re right, Michael … to set term limits on Justices would not stop the political influence, but at least they wouldn’t have influence for as long as 40-50 years. I wish there were some way to find completely non-partisan justices who truly rule for the good of the people. Sigh. xx

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  6. Its to be hoped another justice will follow suit soon. Justice Thomas should retire and make way for a progressive democrat. He should go and spend time with his wife and see if he can calm her down a bit.Either that or die in office now, before his name gets even more tarnished.
    CWTCH

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    • Given his wife’s radical statements, I think Justice Thomas should indeed step down and if he doesn’t, he should be expelled! However, don’t hold your breath waiting for him to do the right thing. In truth, I was shocked when he was confirmed in 1991 after the Anita Hill scandal. That should have ended his chances for a seat on the Supreme Court right there, but the misogynists carried him on their shoulders. Anita Hill, after all, was a mere woman. Grrrrrrrrrrr.
      Cwtch

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