Reviews | Stephen Breyer was the right judge for the wrong age


Noting that the standard for granting an injunction of the type requested by the plaintiffs required showing that the court’s intervention was in the public interest, he asked: “Is what you’re doing now, saying it’s in the public interest in this situation to stop this vaccination rule, with almost a million people – let’s not exaggerate – almost three quarters of a million people, new cases every day? I mean, for me , I would find that incredible.

Of course it is what the court didand of course Judge Breyer dissented.

His dissenting opinion, written with Justices Kagan and Sonia Sotomayor, was not particularly showy. It was, one might say, Breyeresque, using the data, logic and language of administrative law – a subject he taught for many years at Harvard Law School – to arrive at his central argument:

Underlying everything else in this conflict is a single, simple question: Who decides how much protection and what kind of protection American workers need against Covid-19? An agency with occupational health and safety expertise, acting as Congress and the authorized president? Or a court that doesn’t know how to protect workplaces and isn’t responsible for the damage it causes?

The fact that this argument failed speaks volumes not only about Judge Breyer’s mismatch with the court’s trajectory, but also about the majority’s mismatch with the kind of factual analysis he brought to the problems of the court. is responsible for solving.

In recent months, Justice Breyer has been mocked on the left for clinging to a romantic view of the Supreme Court as an institution apart from politics. Certainly that argument is gone, if he could only overcome this fiction and understand the political moment, he would hang up his robe.

This confuses the man. He cut his teeth in politics, working for Senator Edward Kennedy as a senior adviser to the Senate Judiciary Committee. I’m sure he, like all of us, watched with clear eyes and heavy hearts as politics overwhelmed the institution he loves.

His understanding of politics – that the only way to make a difference is to stay in the game – saw him stay on the court as a senior associate judge on the diminished Liberal side, a role that will now pass to Judge Sotomayor. Although he will remain in the field until the end of this term, he has chosen to announce his intention to retire now, just after the court has finished gathering the cases he will hear and decide until at the end of June or beginning of July. This suggests that he has his sights set firmly on the months ahead and has decided he has made all the difference he can.

Now is the time to let someone else try.

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