January 21, 2016

Listen to Justice Breyer explain very carefully the extent to which the Supreme Court is not political.



They don't change like the weather... but like the climate.

The question that takes him there is specifically about the case the Court just took about President Obama's go-it-alone immigration policy, which will be argued and in all likelihood decided within this period running up to the presidential election.

31 comments:

rehajm said...

You think he means they change like the climate the way climate models 'improve' and 'evolve' or change like the actual climate?

David Begley said...

Hey Mr. Justice Breyer.

You brought it on yourselves with your obviously partisan decisions which have little basis in law. Too many to cite.

I could write RBG's opinion on the "Take Care" immigration case today. "The Constiution grants broad and exclusive authority to the President in matters of immigration. Blah, blah. The President also has discretion to not prosecute every little violation of federal law. Blah, blah."

SteveR said...

Its not "political" once you've been nominated and confirmed but that process is entirely political. His presence on the Court is a political calculation. Its not been turned off.

TreeJoe said...

Ann did you read Hillary Clinton's op-ed posted on Cnn.com yet? http://www.cnn.com/2016/01/21/opinions/hillary-clinton-citizens-united-more-democracy/index.html

Curious what you think of it.

Hagar said...

Supreme Court justices are not political, but they do read the newspapers.

eric said...

They are political. Me thinks he doth protest too much.

You are fortunate, Ann. You're near retirement and could be nd your career now. New up and coming law professors won't be so fortunate. The law is no longer blind. It's political.

Dustin said...

Marbury v Madison was political.

The Court has always been political. The constitution should have been a little more clear about the judicial branch's power. We mostly like the ideal of a sober and unbiased judiciary to stand in contrast to the cynical politicians, but they are just another set of politicians who try to gain legitimacy by denying it. Just look at how Clarence Thomas, the only really no political jurist, the only truly predictable one, is treated. You can just read the law and know how he'll rule, and yet he's the moron in the eyes of ... well, in the eyes of the politicians.

Breyer is being pretty honest about it. It's a huge problem, though. Letting these changes occur through the political branches would make the republic more stable.

Dan Hossley said...

Breyer just explained the process by which the Supreme Court legislates. Maybe Texas is right to call for a constitutional convention.

Achilles said...

Every 200 years or so.

The political class is too entrenched. It will have to be removed like a tick if it doesn't go willingly.

Mid-Life Lawyer said...

It's fitting that he would use the distinction between climate and weather in his analysis on political influence on SCOTUS. The Climate Change Lobby does the very same and for political reasons, as well. When the weather seems to fit the hysterical reaction to alleged climate change argument, then it is climate. When the weather does not fit the hysterical reaction to alledged climate change argument, then it is merely weather, stupid.

Justice Breyer would probably call that which allows politics to influence decisions, the climate, whereas others might view it as the weather.

Sebastian said...

Transparently phony and disingenuous. Just the kind of self-serving mush you'd expect from Mr. Active Liberty. Of course, 1. the climate changes only one way, and 2. Progs don't need no stinking data. Example 1: when most states legislate the death penalty, Prog justices can just declare the climate has changed to make it unconscionable, ergo it's unconstitutional due to climate change; and when sentiment intensifies to bring the death penalty back, states can't do it because that would be unconstitutional, you see. Example 2: most referenda on SSM opposed it, but Progs knew better, because climate change; therefore we can now find in the 14th what all previous generations of Americans would have considered unconscionable and what majorities (even in California) denied; and if at some out we think SSM is no good, states can't shift back, because that would be unconstitutional, you see, climate change be damned.

Kevin said...

Breyer isn't political - it's purest coincidence that he votes the straight Democratic Party line on each and every Supreme Court decision.

Bob Ellison said...

Green Pants, by Dr. Seuss.

grimson said...

So, the court is no more political than it has always been, it's just that it is being reported more politically? That does not mean that the court is not political.

Ann Althouse said...

"It's fitting that he would use the distinction between climate and weather in his analysis on political influence on SCOTUS."

He was quoting someone from 60 years ago... but he was quoting it now, choosing it and not some other old thing.

n.n said...
This comment has been removed by the author.
Ann Althouse said...

"Green Pants, by Dr. Seuss."

Thanks. I hadn't thought of that one in a long time.

When I think of green pants, I think of my dear husband Meade!

n.n said...

Immigration reform begins with emigration reform, and rejecting the State-established quasi-religious pro-choice doctrine that resumed abortion rites.

Ann Althouse said...

The Meade reference is explained here.

And it's uncanny. That post like this new one has only one tag: "things"!

Ann Althouse said...

Wait. I mean the other post... the one about pants. That must be where Bob Ellison intended to link to Dr. Seuss.

Iapetus said...

Something for a Constitutional Convention to consider: One, and only one, fixed term of 19 years for all Federal judges, after which time they can each either retire or become a senior judge.

19 years is more than enough time for any judge to create mischief. After that, someone else deserves an equal chance to muck up the legal system.

Bob Ellison said...

Yes, my bad. Still, word on the street is that Breyer wears green pants.

William said...

Here's the tell: Is there a change in the judges? "I don't think so," he says. Bull sh*t! Liberal judges are much more activist than conservative judges, and there is a growing trend of judicial activism at all levels of the judiciary. So, with all due respect, Mr. Justice, there IS a change in the judges, a big one.

Breyer admits that "There are different philosophies over how the Constitution should be interpreted over time." And what, pray tell, causes those changes to how the Constitution is interpreted? Hint: It ain't El NiƱo.

To hear this kind of disingenuousness and patronization from a SITTING Supreme Court justice talking in public is truly disheartening.

Mid-Life Lawyer said...

Ann Althouse said...
"It's fitting that he would use the distinction between climate and weather in his analysis on political influence on SCOTUS."

"He was quoting someone from 60 years ago... but he was quoting it now, choosing it and not some other old thing."

I realize he was quoting someone but, like you said, he used that particular quote, today, when the weather/climate distinction is being frequently used in a highly political issue. One person's weather is another person's climate both at SCOTUS and in the science departments that are raking in the big government grants to support the Green Energy boondoggle, in my opinion. Or in the partisan newspapers when they often call any warm event evidence of climate change and any cool event, just weather. I suspect he does the same. If he wants to justify a particular ruling, he might rationalize that the climate has changed when I might think it was just an unusual weather event. Or vice versa. It's interesting to me that he chose to make his general political influence point borrowing a sixty year old quote that is using terms that are relatively charged today (presumably not sixty years ago) but in a singular highly political issue.

Birkel said...

He can quote anything he likes from as far back as he likes. He's lying to me today.

Worse, he is lying to himself if he actually believes his own bull shit.

mtrobertslaw said...

So Justices have different philosophies. End of discussion. The questions left unanswered are what are these "different philosophies" and how do they square with fundamental democratic principles.

Any course in Constitutional Law should explore these different philosophies in some depth.

Simon said...

You know, we just passed the tenth anniversary of a debate that Scalia and Breyer did on CSPAN which changed my life. Scalia was so good, everything that he said made sense and was intelligent, articulate, and precise, and everything that Breyer said was ludicrous and was vague, mushy, and meandering; it was so clear that here we have a judge worth paying attention to and one who seems, despite advanced academic credentials, like a blithering idiot. He hasn't gotten any better. What's worse, he's like this at oral argument, too. Long, silly, meandering soliloquies that go nowhere in particular.

Sammy Finkelman said...

Supreme Court Justice Anthony Kennedy seems to be saying that Supreme Court Justices (or at least he himself) do not follow the election returns, but they do follow what they think are long term trends in public opinion.

Luke Lea said...

Except when it's about gay marriage. Then it's the weather.

Rusty said...

Ann Althouse said...
"Green Pants, by Dr. Seuss."

Thanks. I hadn't thought of that one in a long time.

When I think of green pants, I think of my dear husband Meade!


Might want to change his diet a little.

Unknown said...

Just another left-wing political activist masquerading as a judge. If he really believes this shtick he's a fool. If he doesn't he's a liar.

We are going to have to get serious, very serious, about prying these activists from the court. Otherwise we will lose our 1st and 2nd Amendment freedoms.