During the recent Supreme Court arguments in the school choice case Carson v. Makin (full disclosure: my wife does paralegal work for the petitioners), Justice Stephen Breyer asked the following concise question:
I — I might ask this because it’s related to what Justice Kavanaugh said and — and what you’re saying. I mean, it is discriminatory against religion, but I think the Establishment Clause problem or interest underlying it forever has been beware if the government gets too involved. One, people will think the government favors some things as opposed to others, and that that will cause strife. Two, the Vietnamese boat people will have no problem in Los Angeles, but they sure will in Maine because there aren’t enough of them. And there are a lot of religious people who will say why are you preferring the Catholics or the Jews to the Vietnamese boat people? You see? And you say I have an answer to the discrimination, there aren’t enough of you. Oh, oh, I see. Minority, okay. But there’s a third one which you haven’t mentioned, which I learned out of a case in the First Circuit, which was really tough, religious reason for teaching about Honduras in the geography class in way X. School board says way X, you can’t do it; you’re disqualified as a teacher. They say but that’s how we’re supposed to do it, okay? And I have never seen emotions rise so high in a courtroom. And, suddenly, you get into teaching that involves worship and religious principle. You don’t know what kinds of inter-religion or why are you doing it for the religious people but not me, I’m not religious, dah-dah, dah-dah-dah. The strife that can be involved. All right. Now, I thought that was a good reason why Zelman was wrong. But my colleagues did not. Now we have, in fact, a different issue: Can a state have a different judgment than Ohio? Can Maine differ from Ohio? That’s the issue. All right? Hey, we have a principle, we have 50 states and a huge country, and so why not, I say, let some decide one way; let some decide the other. They have different kinds of populations. Now, you see what I have? I have a great theory. Is there any law supporting that?
So, yes, it may be time for Breyer to step down from the bench, even if it does leave the Vietnamese/New England boat people community hanging. And it’s for that reason that you have to give Breyer credit for announcing his retirement today. The man has served on the court since 1994. There’s a Democratic president in the White House. For an octogenarian liberal justice like him, the time is now.
Given that we insist on treating jurists like legislators, we’re obliged to note that Breyer’s retirement will not change the partisan composition of the Supreme Court. He was a member of the increasingly endangered liberal wing, and Biden’s replacement will add to the same. It’s always more difficult to predict whom a Democratic president will nominate than it is a Republican, since the left has no Federalist Society, no farm system for aspiring justices. But certainly Breyer’s replacement will align more with Sonia Sotomayor and Elena Kagan than Neil Gorsuch and Sam Alito.
Halfwits on Twitter are already advising Biden to take this opportunity to pack the court, a brilliant strategy for a president with a 33 percent approval rating. Yet if Biden ignores them and instead plays this carefully, he might yet rack up some political benefit. A Supreme Court confirmation fight will energize his left-wing base, currently despondent over a Build Back Better bill they have no clue how to pass, a bout of inflation they’re pretending doesn’t exist, and Covid measures even they’re starting to doubt. A battle over the judiciary will turbocharge them because it will place on the table one of their favorite issues: abortion.
Democrats correctly perceive that Republicans have spent decades elevating conservative and originalist justices to the Supreme Court in the hope of overturning Roe v. Wade. And with the Dobbs v. Jackson Women’s Health Organization case having recently been argued, with all the conservative justices having sounded skeptical of Roe, it may only be a matter of time. Still, there’s at least a chance that the court fails to junk Roe, in which case progressives will feel they need some insurance against further encroachments on legal abortion. They’ll be demanding just that from whomever Biden decides to nominate. And if Roe does go, it will only heighten the siege mentality among progressives.
In other words, this time around, the scrutiny from the left will be intense. If Biden nominates a perceived weakling, as George W. Bush did with Harriet Miers in 2005, don’t expect them to take it sitting down.
This is going to be yet another bloody and brutal culture war disguised as an advise and consent session. Judiciary Committee Republicans will have their knives out too. Senator Josh Hawley has pledged to never vote for a judicial nominee who doesn’t explicit condemn Roe. Senator Ted Cruz will be looking to score his usual points. There might not be much at stake, but since when has that ever stopped a good partisan street fight in the year 2022?
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