Thursday, January 27, 2022

Part I

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‘I Don't Want Somebody Appointed Who Will Just Reverse Everything I've Done’: Evaluating the Political and Historical Context of Justice Stephen Breyer’s Impending Retirement

Anytime a seat on the Supreme Court comes open, history is going to be made. And that’s exactly what we all understand is before us with the announcement that came yesterday through some kind of leak given to the media, that Supreme Court Associate Justice Stephen Breyer would be retiring at the end of the court’s present term.

We should note that as of yesterday, the full speculation and anticipation was enforced that Justice Breyer is going to retire and specifically at the end of this court’s term, which generally means at the end of June or the beginning of July. But we should note, no formal announcement has come from Justice Breyer, nor any particular official word from his chambers, from his judicial offices. The reality is though that if this were not true, it would have been denied.

And clearly this is part of some kind of orchestrated series of events that will involve what is likely to be something like a White House announcement tomorrow with an official statement of the Justice’s intention to retire from office. But behind this is a fascinating story and before us are some massive issues of worldview significance. You knew that already. Let’s talk about exactly what we’re looking at here. First, let’s look at the political context, because the most immediate issue is that political context.

That context takes us back to last year, the midpoint of the year and, in particular, about the last 90 or a hundred days of the year when liberal and progressist activists began putting pressure on Justice Breyer to retire from the bench, from the nation’s highest court, from the Supreme Court of the United States, a court on which he has served since August the 3rd of 1994, so for more than 25 years. Why that political pressure? It’s easy to explain.

Everything has to do with both sides in the nation’s divide wanting to make certain that the leaders of their party and the leaders of their cause do everything to make certain that they do not lose ground on the Supreme Court, but rather gain it. And right now the math is very clear. You have six justices appointed by Republican presidents. You have three justices appointed by Democratic presidents. It is not exactly right to say that that means a conservative liberal divide. But in basic terms, that’s exactly what you’re looking at.

You’re looking at a six-three conservative majority, and that’s a big shift. Let’s just remind ourselves, we’re going to be talking about the historical context in just a moment. The political context is that the Democrats know that there is a very clear and expiring period in which they will be able successfully to get a nominee to the high court through. Now, President Biden is serving a four year term. Why is this period much shorter? Well, it has to do with a couple of things.

Number one, most importantly, it has to do with the midterm elections that will be coming this year and the fact that when you understand that every single nominee to the court must be confirmed by the Senate in order to serve, well, you understand that the composition of the Senate means everything. What’s the composition of the Senate? Well, officially when it comes to the two party caucuses, you have a 50-50 split.

Now, you can win with a 50-50 split if you have a president of your own party and a vice president of your own party thus serving as the presiding officer of the Senate. That means the tie breaking 51st vote. That is the reason, it’s the only reason that Chuck Schumer rather than Republican Mitch McConnell is currently the majority leader of the United States Senate. But you also have to understand that there’s a very heightened unspoken sense of urgency given that 50-50 split, with the tie vote going to the vice president of the United States.

That Democratic majority with a Democratic vice president only holds so long as there is no shift in even a single seat. And realize that could happen before the midterm elections. It could happen without reference to the midterm elections. It could happen by the death of a Democratic senator. It could happen by any number of issues that might take a Democrat out of office even before the midterm elections. And that would mean that that 50-50 split with the tie breaker that goes to the Democrats, it would evaporate or at least potentially so.

The Democrats feel as if they have been burned before. And what’s really interesting for us to note is that the Democrats put a great deal of that blame for a six-three conservative majority on the person who was arguably the most liberal and progressivist justice of the Supreme Court in recent decades, Justice Ruth Bader Ginsburg. It was her death, even after she had been very ill and even if she was in advanced age, when she did not retire while a Democratic president could nominate her successor and get that successor through the Senate nomination process.

When she held onto that seat and eventually died, even in the closing weeks of the presidency of Donald Trump, it was Donald Trump who was able to appoint her successor. It was a Republican majority in the United States Senate that was able to move that nominee, now Justice Amy Coney Barrett, through the confirmation process. And thus, you’re looking at the fact that President Donald Trump appointed three justices of the six conservative justices, now representing that six-three divide.

Now, back last year, going back to August of last year, even as the left was putting pressure onto Justice Breyer to retire while there was time for President Biden to name a successor and a Democratic majority in the Senate to move towards confirmation, Justice Breyer appeared to be resistant. For one thing, it was only with the death of Justice Ruth Bader Ginsburg that Justice Breyer became the senior liberal on the court. Most often the senior justice in the minority in so many controversial decisions. And that’s not just a matter of seniority and an honorific status.

It comes with enormous influence as well. Back in August of last year, Justice Breyer acknowledged that he was trying to decide when he should step down and retire from office. He said, “There are many things that go into a retirement decision.” The cited the late Justice Antonin Scalia, a conservative colleague, who, Justice Breyer said, had told him, “I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years.” That will inevitably be in the psychology, he said, of his own decision. “I don’t think I’m going to stay there until I die. Hope not.”

Well, if indeed Justice Breyer makes his statement today, as is expected, and if that doesn’t happen, then the Democrats are going to have a huge amount of embarrassment to face. And assuming that does take place today, Justice Breyer will have moved forward on a plan that he may have had for some time, or he may have just recently develop, given his understanding of the political context. But that political context also involves the President of the United States Joe Biden, who was elected as a Democratic president and has moved very much to the left.

By the way, the White House Chief of Staff Ron Klain is a veteran of nomination battles, and he is understood to be very much an advocate for the progressivist left in the Democratic Party. President Biden has veered left. His party has veered left. And as you are looking at the political context, the Democrats are in a very interesting position. They barely hold a majority in the United States Senate. If they are going to get a nominee through, they better do it now. President Biden has further complicated the issue by making a pledge.

It wasn’t described as a pledge, but it basically was a pledge that at his earliest opportunity, he would nominate a black woman to be the next justice of the United States Supreme Court. Having said that the way he said that, it is now virtually, in political terms, impossible that he could go back on that. You already know a great deal about the nominee that President Biden is going to bring.

Eventually, whomever that nominee, is that nominee is going to be so an acceptable to the left wing of the Democratic Party, who the party still thinks it can get through, the White House thinks it can get through the nomination and confirmation process, and someone who is already identified as an African American woman. We know that much already. The political context means this is going to be an intense fight, because the larger political context is that every single seat on the United States Supreme Court is of massive, indeed, virtually incalculable importance.

And that is because the Supreme Court, especially over the course of the last six decades, has moved into so many areas of American life, that what happens on the court with those nine votes has a great deal to do with what happens on the ground where every American lives in this country on issues that in previous understandings of American history would never have actually involved the court at all.

Part II

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The Constitutionalism of Justice Breyer: Traditional Liberalism, Pragmatism, and Outcome-Based Jurisprudence

But let’s talk about these historical context for a moment. First of all, Stephen Breyer just isn’t a household name, and I don’t think that would bother him. He is a very accomplished jurist after all. He has served on the Supreme Court of the United States since 1994. Before that, between 1980 and 1994, he was a judge on the next most important court in the United States, the United States Court of Appeals for the First Circuit in Washington, D.C. Before that and for many years, he was a professor of law at Harvard University. He has the kind of pedigree you would expect of a Supreme Court justice. He attended Stanford University for his undergraduate degree.

He became a Marshall Scholar and went to Britain, studying at Oxford University and earning another baccalaureate degree. Then he came back to the United States, went to Harvard Law School where he earned his law degree, and then he followed a very predictable legal and professional trajectory. He became a clerk to a Supreme Court Justice. That would have been Associate Justice Arthur Goldberg. He clerked between ’64 and 1965. He then taught at Harvard Law School from 1967 until 1980 when he went and joined the First Circuit as a judge.

As I said, Justice Breyer had studied at Oxford University and he married a British woman, Joanna Hare, who was a member of the British aristocracy. Her father was Lord Blakenham, Viscount Blakenham, John Hugh Hare, who, by the way, interestingly enough, had at one point been chairman of the British Conservative Party. That family was, of course, a part of the Church of England. Justice Breyer or future Justice Breyer was Jewish. The family eventually included three children, including a daughter who has served as an Episcopal priest.

Justice Breyer was appointed to the Supreme Court by president Bill Clinton, and he was confirmed in just a matter of weeks. He took the seat that had been held by Harry Blackmun, who had been, as you’re thinking about this, the justice who had written the majority opinion in the Roe v. Wade decision. Now we need to step back and ask a couple of questions about Justice Breyer or even before he was justice, Judge Breyer and Professor Breyer. What is his understanding of the law? What is his understanding of the constitution?

As you look at Justice Breyer, his constitutionalism is very much in line with the liberal trajectory of the Supreme Court in the 20th century and with the more liberal trajectory of the law in terms of law schools and many professors during the same period. At Harvard Law School, he was a specialist in administrative law. If you’re going to talk about one word to describe Stephen Breyer, it would be pragmatism. He holds to a very pragmatic view of the law.

In a series of decisions, and not only that, in a series of writings, including books, Justice Breyer has argued for a procedural understanding of the law and what we could only describe as something like an outcome-based understanding of the law and of the constitution. Judges, he argues, should take into account the social effects of their rulings, and they should not be so much bound by the constitution as by their judgment of what kind of liberties the constitution would insinuate in our culture today, and what the results of ruling rightly would be versus the results, as he would see it, of ruling wrongly.

Now, that once again is a very different understanding of the law and of the constitution than the founding era. You’re looking at the liberal progressivist impulse that particularly emerged in the 20th century and produced so many of the activist decisions of the United States Supreme Court. Let me put another way. Justice Breyer should be understood as intending to do good. By his own understanding, he intends to do good, according to what he believes is good and in accordance with how he believes the court should rule in order to accomplish good.

And you say, “Well, that’s good.” Well, conservatives would respond, “No, that’s not good.” The court is to rule and judges are to rule according to the law and according to the text of the constitution. They are not to substitute the authority of the constitution with their own authority, even in thinking through what they believe would be good. This is one of the major distinctions between more liberal and more conservative understandings of the constitution and of the role of a judge.

Conservatives believe in what’s described as originalism or strict constructionism or textualism, meaning that the constitution’s words, sentences, grammar, that the history behind the statements and the words, what we knew were the intentions of those who put the text into effect, that, most importantly, the text itself taken as a textual document, that is to be the basis of adjudication. The text is to be the authority, not the authority of the judge.

But by the time you get to the early 20th century, you have presidents such as Woodrow Wilson pushing what became known as progressivism, and Wilson thought that the US Constitution in its words and sentences was too restrictive in order to produce the kind of large increasingly administrative activist government that he wanted at the federal level. And by the way, he was right that the constitution would not allow in terms of its words and its text the vision of the government that he wanted to push.

But the progressivist largely won during the early and middle decades of the 20th century. It was only toward the end of the 20th century that the conservative argument that became best known as textualism emerged, and you had a conservative pushback against that progressivist vision. Over time, Republican presidents, who had had many misfires in Supreme Court appointments over the decades, increasingly learned how to identify conservative judges who would actually apply a conservative constitutionalism on the nation’s federal bench and, most importantly, at the Supreme Court.

Part III

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The Last of His Kind? The Liberal Legacy of Justice Stephen Breyer

Democratic presidents are far more beholden to forces behind identity politics. And that explains why President Biden made that specific pledge that he would appoint the first black woman justice to the United States Supreme Court. But you also have to understand that some of those groups have been quite frustrated with Justice Breyer because he is a proceduralist. He is indeed someone who believes that the law should move in the direction of what he sees as good.

But he’s frustrated many on the activist left in the Democratic Party because he still represents a more historic 20th century liberalism than the more radical activism they want to on the court today. If you’re looking on the current court at that distinction, just look at the three more liberal justices and look at the distinction between the traditionally liberal Stephen Breyer and the younger and more activist liberal Justice Sonia Sotomayor. Make no mistake, Justice Stephen Breyer has been a liberal justice with a cap “L.” Just take the issue of abortion.

He wrote the majority opinion for the case known as Stenberg v. Carhart, which back in the year, 2000 struck down a law that prohibited partial birth abortion, by the way, in the state of Nebraska, and struck it down because Justice Breyer along with the majority in the court in that case were ardently determined to oppose just about any limitation upon abortion undertaken by the states. We’re in a very different situation now, and the mathematics of a six-three conservative majority alone explains why.

In several other cases, Justice Breyer also upheld so-called abortion rights. As a matter of fact, he was on the abortion right side of every case relevant to the issue during the entire time he has sat on the court. Of course, the most important case on abortion in decades was before the court, just a matter of a few weeks ago, the Dobbs case coming out of Mississippi. And notice very carefully that Justice Breyer has determined to stay on the court through this term so that he will be a part of the adjudication of that decision. Stay tuned on that.

When it comes to any number of other issues, including the death penalty, here’s where you see the distinction between a conservative textualism and a very liberal pragmatism on the court. Justice Breyer opposes the death penalty. He has said in writings and in other comments that he believes the time has for the Supreme Court basically to rethink the basic constitutionality of the death penalty. Clearly he is arguing that it is unconstitutional.

But of course, the historical problem there is that when the constitution itself was written and when it was ratified, capital punishment was the practice of all of the states. It could not have been understood to have been unconstitutional by the constitutionalists. But this underlines that major conservative-liberal divide over the constitution. Is it a fixed text that can be changed, say by amendment and amendment only, or is it a so-called living document that can be interpreted by judges who believe that they know best?

Make no mistake. This isn’t a charge that Justice Breyer intends to do anything other than good according to his own conception of the good. The conservative response would be that Justice Breyer or any other justice’s conception of the good simply shouldn’t be the issue, because that just turns the court into another form of legislature. Outcome-based law, by the way, is a form of understanding the role of the courts and of justices or judges that says that the judge should make his decision or her decision based upon what would be the likely outcome of the decision.

That outcome-based law is a very liberal approach. But what we need to understand is that Justice Breyer has been unapologetic about outcome-based law. Indeed, in his writings and in his jurisprudence, he’s basically argued that doing good, looking to the outcome of decisions in cases is exactly what judge should do. We can say this much for Justice Breyer, he’s done exactly what he said he would do. His jurisprudence basically fits what he says he understands to be the role of a judge, but not entirely.

Peter Berkowitz, by the way, and other analysts and scholars of the court have criticized Justice Breyer for basically working back to the constitution more than he admits. That is to say, he doesn’t start with the constitution. He doesn’t start with the statute. He tends to start with where he wants the court to rule, and then he works backwards towards any kind of constitutional basis. Again, we expect a formal announcement later today of Justice Stephen Breyer’s retirement, and announcement that would come by him and with him.

It’s going to be interesting to see exactly how that does come down and exactly what Justice Breyer says and what as expected President Joe Biden says in response. We’re going to be staying tuned and watching this very, very closely. But I want to make a final observation at this point about Justice Stephen Breyer, and that is this. I think future generations and observers of the court will look back and see that Stephen Breyer was one of the last of his kind, one of the last liberal, with a capital “L,” democratically-appointed justices of the United States Supreme Court.

Why do I say that? It is because I think we can fully expect now that far radical and even more activists, even more progressivist judges are likely to be appointed by Democratic presidents. I’m not saying that just as a matter of inference. I’m saying that because they basically have told us so and their base makes it necessarily so.

Part IV

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The Transgender Revolution’s War on Language Will Result in the Destruction of Pronouns

Finally, just some closing words about language. We’ve discussed the language and the text of the constitution. I want to go back to an issue I discussed yesterday, which is the controversy concerning a transgender swimmer at the University of Pennsylvania. And in the course of discussing, the swimmer, identified as Lia Thomas, I did what I do. I was reading from press reports, and those press reports, of course, given the contemporary subjection of the media world to the LGBTQ agenda, that press report, indeed virtually all press reports, used the preferred pronoun.

In this case, we’re talking about a biological male, no question about that, who is, as Christians understand, also right now and forever more a male. We understand that the press refers nonetheless to this individual with female pronouns. The issue is not reading the press report. The issue is that as I was pressing forward on The Briefing, I used the same pronoun. I did so by accident, and that raises a huge issue. The transgender revolution is simply destroying pronouns, and it is becoming virtually impossible to make sense using pronouns.

That’s one of the reasons why generally in reporting this kind of story, I would use the quotations exactly precisely as they appear in the media or in public statements, and then I would come back and instead of using a pronoun, I would use a noun such as instead of saying he or she, I would say the swimmer or this individual or this student. The reason is that oral communication can’t do switchbacks all the time between she and he, until you lose track of the person to whom you’re making reference.

And again, that’s just further evidence of the disaster and the devastation of the transgender revolution. It is a war against creation. It is a war against order and reason and rationality. It’s a war against objective truth, and it’s a war against pronouns. Pronouns are linguistic shorthand. You use pronouns rather than continuing to say someone’s name or to describe a person otherwise. He or she, or we or they has made sense throughout the history of the English language, because they are shorthands for identification. Those shorthands are simply being destroyed.

Here’s further evidence. It is extremely difficult now to use any pronouns with consistency in a way that we believe is true to creation and at the same time intelligible in talking about someone presented as transgender. Here’s the issue. We should use and we should only use the pronouns that we believe actually are in accordance with creation order, with that person’s actual identity and with that person’s actual sex/gender as established by God. We shouldn’t use other pronouns as difficult and as complex as it is to avoid them.

We’re going to make mistakes, but at least we need to recognize that’s exactly what they are. But in the bigger picture, we need to understand that the rejection of creation order here is also the rejection of vocabulary intelligibility. Eventually, pronouns are going to be linguistically destroyed or used only by those who actually do hold to the idea that gender is unspecified and determinate and can be claimed and changed by individuals at any point in time. Even more recently, this problem has been revealed in reading and writing history.

Because how do you refer to someone in the past who is identified as transgender now? Let’s just use an historical example. Let’s say that there’s someone who identified as a man. And again, we, as Christians, would say because he was a man, and then claims a female identity or a female gender and a female persona using a female name. Historians are trying to argue right now about how you are to refer to that person in the context of the past. And the answer is, Christians have no choice, but to refer to them honestly in accordance with biology.

But understand the problem is you’re going to be reading history that is going to do the opposite. But that’s just another issue that Christians understand if, indeed, you are bold enough to try to undo creation, you’ll undo every aspect of human knowledge as well. Even history.