A powerful new swing vote has emerged on the hobbled, eight-member Supreme Court. His name is Justice Stephen Breyer. Appointed by Bill Clinton in 1994, Breyer has been a liberal wine-cooler compared to Justice Ruth Bader Ginsburg’s progressive Johnnie Walker Blue.
I’m not going all “Bernie or Bust” on you. When conservatives on the Supreme Court go full-on “original, slaveholding intent,” Breyer can be counted on to stand opposed. And that’s plenty good. But on issues of “law and order,” Breyer has always been a little bit “squishy.” He joined the majority in Utah v. Strieff this year, where the Court dramatically weakened the Fourth Amendment. With Scalia dead, Breyer becomes the fifth vote conservatives need.
Breyer’s distaste for criminal rights doesn’t usually extend to citizens who haven’t been accused of anything. But yesterday, Breyer issued a disappointing opinion, temporarily blocking a lower court ruling that allowed a person who was born a girl to use the boy’s restroom at school. From CNN:
A divided Supreme Court agreed Wednesday to temporarily block a lower court order that had cleared the way for a transgender male high school student to use the boys’ bathroom in a Virginia public school this fall...
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan would have left the lower court decision undisturbed. It took five justices to act, and Justice Stephen Breyer wrote separately to say that he concurred in the decision in part because granting the stay would “preserve the status quo” until the court has a chance to consider a petition for cert. “I vote to grant the application as a courtesy,” Breyer wrote.
That’s his argument? He cites “courtesy” as the legal underpinning for blocking a court ruling regarding the freedom to pee? WHAT ABOUT COURTESY TO THE KID WHO JUST WANTS TO PEE IN PEACE? Surely, the courteous thing to do would be to let the kid pee where he’s comfortable, while the adults sort out the legal mumbo-jumbo around his privacy.
“Courtesy” is the kind of legal reasoning you get from a person who suddenly feels the power of a “swing voter,” but doesn’t know how to use it yet. Breyer is in his “Amazing Spider Boy” phase, before he gets Uncle Ben killed.
And like Peter Parker, I expect Breyer to eventually do the right thing. But I also expect him to be a whiny, reluctant hero.
If Hillary Clinton gets to appoint a new Supreme Court justice, Breyer will find himself at the center of the Court, a space that has been occupied by Justice Anthony Kennedy ever since Justice Sandra Day O’Connor retired in 2006. And from that center, Breyer can be every bit the problem for the left as Kennedy can be for the right.
Note, I said if “Hillary Clinton” gets to replace Scalia. There will not be a lot of pressure from the left for Clinton to reappoint Obama’s choice, Merrick Garland, because the left fears that Garland will be at least as much of a squishy centrist as Breyer, if not measurably worse. I think progressives have had just about enough of former pro-death penalty prosecutors.
Clinton’s Supreme Court shortlist is not, to be clear, a progressive theme park. It’s full of moderates who happen to be diverse, and Goodwin Liu who has no reasonable chance of being confirmed.
But as much as everybody is focused on which new person will end up on the Supreme Court, it’s likely that the tao of Stephen Breyer will have more to do with reshaping the Court than the next “liberal” appointee. Is Breyer to the left of Anthony Kennedy? Absolutely. Will he usher in a new progressive era on the Supreme Court? Probably not.
So somebody please go up to Breyer’s room and check on him. With great power comes great responsibility. And I’m not sure he’s ready for it.