"Over the past 21 terms, the closest any member of the court got to Justice Jackson’s loquaciousness was Justice Stephen G. Breyer..."

"... who was famous for unspooling elaborate hypothetical questions featuring flights of fancy like marshmallow guns (in a case about attempted robbery) and tomato children (in a case about a federal drug law). Still, Justice Breyer... uttered an average of 818 words, or roughly two thirds as many as Justice Jackson [who averages 1263 words]. The runner-up to Justice Jackson in the four years since she joined the court... is Justice Sonia Sotomayor, at 791 words. His colleagues treated Justice Breyer’s professorial digressions with bemused tolerance. Justice Jackson’s extended questioning, by contrast, has been a source of annoyance to some of the other justices, The New York Times reported last October...."

Writes Adam Liptak, in "How a Covid-Era Scramble Transformed Supreme Court Arguments/Live audio, a new format and new voices have transformed and unsettled the court’s signature public ceremony" (NYT gift link).

Liptak offers 3 reasons why Justice Jackson seizes the opportunity to speak far more than anyone else and in defiance of clearly expressed annoyance: 1. She developed her style as a trial judge, the only judge in the courtroom, 2. Her side of the Court is outnumbered, 3. As the junior member of the Court, she's forced to go last when the Justices speak in order of seniority.

Jackson's outsized role at oral argument is so extreme, and so much attention has been paid to it. Clearly, she's choosing it, in spite of the criticism and even disdain and ridicule. She must believe she's doing exactly the right thing. Perhaps she views her contribution as proportionate if you measure not by the number of Justices but by the weight and power of the ideas they represent.

"Of all the genres of unsatisfying nonfiction, books by Supreme Court Justices may be at the top of the heap."

"One subset is the memoir that focusses on the Justice’s early life, ending before confirmation. Justice Sonia Sotomayor’s 'My Beloved World,' Justice Ketanji Brown Jackson’s 'Lovely One,' and Justice Clarence Thomas’s 'My Grandfather’s Son' are examples. These can be gripping narratives and helpful to understanding a Justice’s formative years, but by definition they omit what readers most want to know: what the Justice did on the Court and why she did it. Another category is the learned disquisition on the law, as in Justice Neil Gorsuch’s 'A Republic, If You Can Keep It' and Justice Stephen Breyer’s 'Reading the Constitution.' These, too, fall short of readers’ hopes, for the simple reason that the authors resist any temptation to rule and tell. They write about their understanding of the law and the judicial process, but when it comes to their dealings with colleagues they remain resolutely circumspect. Barrett’s book is a mashup of the two forms: memoir and personal reflection are interlaced with explanations of legal doctrine. (Her grandmother’s unwritten recipe for shrimp remoulade provides a jumping-off point for discussing the benefits of a written constitution: 'Unwritten constitutions, like unwritten recipes, can be hard to pin down.')"

Writes Ruth Marcus, in "How the Supreme Court Defines Liberty/Recent memoirs by the Justices reveal how a new vision of restraint has led to radical outcomes" (The New Yorker).

This definitely gets my "unread books" tag (though I did read, a blog about, "My Grandfather's Son"). 

Marcus gives the Justices credit for writing "about their understanding of the law," but do they? How could they really?

Here's my old post "What I really think about the Clarence Thomas book" (from October 2007). I sort of "live-blogged" my reading of that book, and along the way, I was "accused both of fawning over him and of obsessively hating him," but, I said:

"Her opinions, sometimes joined by no other justice, have been the subject of scornful criticism from the right and have raised questions about her relationships with her fellow justices, including the other two members of its liberal wing."

Writes Adam Liptak, in The New York Times, about Ketanji Brown Jackson.

“We will not dwell on Justice Jackson’s argument, which is at odds with more than two centuries’ worth of precedent, not to mention the Constitution itself,” Justice Barrett wrote, in an opinion [in Trump v. CASA] signed by all five of the other Republican appointees.

“The principal dissent focuses on conventional legal terrain,” Justice Barrett went on, referring to Justice Sotomayor’s opinion. “Justice Jackson, however, chooses a startling line of attack that is tethered neither to these sources nor, frankly, to any doctrine whatsoever.”...

I think Liptak is trying to build Jackson's reputation. He writes things like: "Justice Jackson has appeared comfortable expressing herself from the start." He compares her to Justice Breyer and Justice Brandeis:

“I was frightened to death for the first three years,” Justice Breyer said in a 2006 interview. Even Justice Louis D. Brandeis, a giant of the law who sat on the court from 1916 to 1939, needed time to find his footing. “So extraordinary an intellect as Brandeis said it took him four or five years to feel that he understood the jurisprudential problems of the court,” Justice Felix Frankfurter wrote of his friend and mentor. 

That does not work as a compliment to Jackson.

ADDED: The Washington Post just published a similar article, "One of the Supreme Court’s sharpest critics sits on it/Justice Ketanji Brown Jackson emerges as a strong voice on an unusually fractious U.S. Supreme Court."

"I thought Democrats had learned a lesson from the Ruth Bader Ginsburg episode.... Building a cult of personality around one particular justice..."

"... served to reinforce the idea that it was reasonable for her to stay on the bench far into old age.... All liberals have to show for this stubbornness is a bunch of dissents and kitsch home decor. In 2021, it seemed that liberals had indeed learned their lesson—not only was there a well-organized effort to hound the elderly Stephen Breyer out of office, but the effort was quite rude. (I’m not sure screaming 'Retire, bitch' at Stephen Breyer was strictly necessary, but I wasn’t bothered by it either—he was a big boy, and he could take it.) But I guess maybe the lesson was learned only for instances where the justice in question is a white man."

Writes Josh Barro, in "Sonia Sotomayor Should Retire Now/If she leaves the Court this year, President Joe Biden will nominate a young and reliably liberal judge to replace her" (The Atlantic).

The link on "kitsch home decor" goes to an Etsy page for a $20 item called the Our Lady of Dissent Prayer Candle.

I'm not quoting this because I agree with it. I shouldn't have to say that, but I just watched Don Lemon charge Elon Musk with responsibility for words Musk had simply quoted. When I quote something, I might mean let's talk about this or this is crazy or this is articulated colorfully. 

"As far as I’m concerned, I sat next to [Clarence Thomas] on the bench for 28 years. I like him. He’s a friend of mine."

"I’ve never seen him do anything underhanded or say anything underhanded.... My personal point of view is he’s a man of integrity."

Said Stephen Breyer, quoted in "Justice Thomas Is ‘Man of Integrity’ Says Ex-Colleague Breyer" (Bloomberg).

Breyer... pushed back on the criticism that the Supreme Court does nothing on ethics... He said the difficulty with a code of ethics in the Supreme Court is that the justices can’t be replaced if they disqualify themselves like lower court judges.

"You do your best, you know, and maybe people will agree. And maybe they don’t. And maybe you’ll win. And maybe you’ll lose."

"And then what you do is you think about it for a while. Go on to the next thing, so that you can do a decent job on the next thing. And just keep going."

Said the retired Justice Breyer, quoted in "Breyer warns justices that some opinions could ‘bite you in the back’ in exclusive interview with CNN’s Chris Wallace" (CNN).

Breyer seems to have adopted the catchphrase "And there we are." He's quoted using it 3 times in this short summary of the interview. 

He used it after stating the he tried to change the outcome in Dobbs, describing the mood at the Court after the Dobbs leak, and after declining to criticize either Ginni or Clarence Thomas.

Breyer's "And there we are" made me think of Kurt Vonnegut's "So it goes." In "Slaughterhouse-Five":

[Vonnegut] uses it as a refrain when events of death, dying, and mortality occur or are mentioned; as a narrative transition to another subject; as a memento mori; as comic relief; and to explain the unexplained. The phrase appears 106 times.

Is Breyer's "And there we are" like Kurt Vonnegut's "So it goes"? "And there we are" feels lighter, more like "It is what it is" or "Whaddayagonnado."

Let's take a solemn moment to witness the swearing in of Ketanji Brown Jackson.

"In 6-3 ruling, court strikes down New York’s concealed-carry law."

 SCOTUSblog reports.

The state law at the heart of New York State Rifle & Pistol Association v. Bruen required anyone who wants to carry a concealed handgun outside the home to show “proper cause” for the license. New York courts interpreted that phrase to require applicants to show more than a general desire to protect themselves or their property. Instead, applicants must demonstrate a special need for self-defense – for example, a pattern of physical threats. Several other states, including California, Hawaii, Maryland, Massachusetts, and New Jersey, impose similar restrictions, as do many cities.

ADDED: The majority opinion is written by Justice Thomas, and he is joined by the Chief Justice and Justices Alito, Gorsuch, Kavanaugh, and Barrett. From the Thomas opinion: 

The Supreme Court issues an important freedom of religion case: "Maine’s 'nonsectarian' requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause."

Here's the opinion, Carson v. Makin.

Chief Justice Roberts writes the opinion, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, and Breyer dissents, joined by Kagan and (in part) Sotomayor. Sotomayor has a separate dissenting opinion.

This is what I expected based on the Court's recent history with cases like this, but I'm eager to read it and will update this post.

ADDED: From the majority opinion:

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment.

"When specially equipped federal immigration agents arrived at the elementary school in Uvalde, Texas on Tuesday, the local police at the scene would not allow them to go after the gunman..."

"... who had opened fire on students inside the school, according to two officials briefed on the situation."

The NYT reports.

Also: "[P]olice leaders struggled to answer questions about the horrific hour it took to halt a gunman who opened fire on students and teachers inside Robb Elementary School. No school police officer confronted the gunman before he went into the school, a state police spokesman said...."

ADDED: If the police don't arrive and save us from violence, how can this event support the argument for restricting guns? This is the very situation that makes the most responsible people want to own guns. It reminds me of the summer of 2020, when there were riots, and the police stood down.

AND: I've always remembered this passage from Justice Breyer's dissenting opinion in District of Columbia v. Heller:

Insofar as the Framers focused at all on the tiny fraction of the population living in large cities, they would have been aware that these city dwellers were subject to firearm restrictions that their rural counterparts were not. They are unlikely then to have thought of a right to keep loaded handguns in homes to confront intruders in urban settings as central. And the subsequent development of modern urban police departments, by diminishing the need to keep loaded guns nearby in case of intruders, would have moved any such right even further away from the heart of the amendment’s more basic protective ends.

"In a per curiam (unsigned) opinion on the shadow docket, over the dissent of Justices Kagan and Sotomayor, the Supreme Court has rejected a redistricting plan that a divided Wisconsin Supreme Court had adopted..."

"... for drawing state assembly and senate districts.... The [Wisconsin] court adopted the [Democratic] Governor’s maps, and those maps added another majority-minority district around Milwaukee. The governor added this district saying it was required by the Voting Rights Act... The Supreme Court’s opinion today says either the Governor or the Supreme Court misapplied the Supreme Court’s VRA and racial gerrymandering precedents... The state supreme court should have considered under strict scrutiny 'whether a race-neutral alternative that did not add a seventh majority-black district would deny black voters equal political opportunity.'... [T]he Court used a case in an emergency procedural posture to reach out and decide an issue.... It decided these issues in ways hostile to minority voting rights without giving a full opportunity for airing out the issues and pointing out how this will further hurt voters of color."

Writes Rick Hasen at Election Law Blog.

Here's the opinion. 

Why do only Sotomayor and Kagan dissent? What about Breyer? From "The Supreme Court’s Astonishing, Inexplicable Blow to the Voting Rights Act in Wisconsin" by Mark Joseph Stern at Slate

Only Sotomayor and Kagan noted their dissents; it’s possible that Justice Stephen Breyer dissented as well, but chose not to note it. (This opacity is a perennial problem with the shadow docket.) He may have simply decided not to publicize his disagreement—choosing, perhaps, not to rock the boat months before his retirement. It is difficult, if not impossible, to believe that Breyer agreed with the majority, since he has publicly opposed its approach to the VRA in innumerable cases.

"Jackson’s rulings have been detailed, methodical and left-leaning."

The NYT reports today, as the confirmation hearings are about to begin. 

A review of a substantial sample of Judge Jackson’s roughly 500 judicial opinions suggests that she would be about as liberal as the member of the court she hopes to replace, Justice Stephen G. Breyer. That would make her a reliable member of what would continue to be a three-member liberal minority on a court that is dominated by six conservative justices....

Those opinions are diligent and exceptionally thorough, exhibiting a sure command of both the facts before her and the relevant legal materials. But they are often less illuminating than appeals court rulings that establish precedents and bind other judges.

In Judge Jackson’s eight months on the appeals court, she has issued just two majority opinions, and they have been crisp and forceful....

So, we're told she's "left-leaning" but only "about as liberal" as Justice Breyer.

"Unfortunately Breyer’s book... is not a thoughtful exploration of the virtues and vices of well-meaning deception."

"In his stubborn avowal that the Court... remains an apolitical body, he perpetuates a lie that is anything but noble. I have written much that is entirely positive about his judicial opinions, so it pains me to say that his book reads as though it had been written by someone oddly unaware of the implausibility of its factual claims. Invoking Cicero, Breyer opens by noting that legal obedience, the kind a society needs if it is not to descend into chaos and what Tennyson called the law of 'tooth and claw,' requires either fear of punishment, hope of reward, or belief that the law is just even when it doesn’t deliver what you hope for. The central thesis of his book is that the reason Americans have over time abided by the Supreme Court’s interpretations of the law.... is that they have accepted the view that the justices are not acting 'politically.'... [H]e is content to express his belief that 'jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements'—even while conceding that 'it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape views of policy.' What accounts for these so-called jurisprudential differences? To what degree are they mere window dressing, attached after the fact to conclusions consciously or unconsciously reached on other grounds?"

Writes Laurence Tribe in "Politicians in Robes/Why does Stephen Breyer continue to insist that the Supreme Court is apolitical?" (NYRB).

"Well, you know, he's a bland, older white guy."

Says Adam Liptak about Justice Stephen Breyer. Liptak was asked, on the NYT "Daily" podcast — at 8:48 — why it is that Breyer is the Supreme Court Justice people have the least opinion about (according to a poll).

Breyer, we're told, took into account — in deciding when to leave the Court — a desire not to have his "legacy" undone by the person who replaces him, and that raised the question what is his legacy? Maybe the podcast listeners don't know. In an effort to enlighten them, Liptak began with the notion that Breyer is "a bland, older white guy."

Now, let's be clear. Liptak didn't say that because a person is male, old, and white he's bland. He piled "bland" onto the list of things that supposedly cause people not to have an idea of what Justice Breyer is about. But the suggestion is there: to be white is to be bland. Of course, Liptak isn't saying that white people are bland, only that people, seeing a white person, may get no further than to perceive him as bland.

I can see the argument that this perception is good. Let's begin, when we see a person, with a presumption of blandness. Nothing special about this person. A blank. We'll see if he does anything to distinguish himself. Until then: bland. And don't let that be white privilege. Give everyone this privilege. Until you know something about this individual, leave an open space. If they never put anything in that space — that space in your head — let them remain an enigma, nothing but potential. You do not know them, and maybe you never will.

Breyer will retire!

Big news! 

I'm reading the report in the NYT:

Justice Stephen G. Breyer, the senior member of the Supreme Court’s three-member liberal wing, will retire, two people familiar with the decision said, providing President Biden a chance to make good on his pledge to name a Black woman to the court.

Oh, so there's a "pledge" and he'll need to "make good" on it. 

ADDED: We've already got affirmative action on the Supreme Court's agenda this year as we move toward the elections, and if Biden fulfills this pledge, it will intensify the political theater. He already fulfilled a black-woman pledge in selecting his Vice President, and there's a fair amount of disappointment in her. (She's got worse poll numbers than he does.) But that doesn't mean he should violate his pledge. (I'm assuming it is, indeed, a pledge.) He should elevate an extraordinarily impressive black female judge, so that the political theater is highly supportive of this kind of selection process, and the resonance with the pending cases helps the pro-affirmative-action side win favor with the people. 

ALSO: At WaPo, Neal Katyal, the former Solicitor General and a former law clerk to Breyer, has an op-ed that was all ready to go: "Breyer’s act of listening will pave the way to a healthier democracy." I thought the "act of listening" was going to be the act of listening to people who were telling him he needed to retire to give Biden a chance to nominate somebody before Republicans took back the Senate, but no, it's about judging cases:

A deep part of his listening practice was to pay attention to experts in the field. He often said federal judges are not experts on national security, or the environment, or the economy, and that a deep part of wisdom was deference to expertise. Breyer’s path was to triple check his personal impulses, and particularly so if they conflicted with the views of true experts on the question before him.

That's pretty sober and lofty, but here's how Katyal brings it in for a landing:

Consider just how different that is from the political debates today, where extremist ideology has attacked things that should be noncontroversial, from wearing masks to taking vaccines, from addressing global warming to protecting voting rights.

America stands at a crossroads. On one path is more toxic extremism, the culmination of which we witnessed on Jan. 6. Despite that armed insurrection, the path remains just as seductive as ever to many.

Armed insurrection?

The other path is quieter and more difficult to practice. It is a path forged by Breyer: respect for others, reverence for the law, and most of all, a commitment to listening to and learning from one another.

You know, if you want to be quieter and reverent and committed to listening to and learning from one another, you wouldn't have written "armed insurrection." Or "toxic extremism." This gets my "civility bullshit" tag.

And why shouldn't we be able to debate wearing masks and the best way to protect voting rights and whether we're getting accurate reports of the science about vaccines and global warming? We are not deciding cases and dictating what other people must do, the way the Court does. We're exchanging opinion in the public forum, debating and expressing ourselves! 

That's not "toxic extremism." It's toxic extremism to say that it is!

AND: From right before the 1980 election: "Reagan Pledges He Would Name a Woman to the Supreme Court" (WaPo). In June 1981, Potter Stewart announced his retirement, and Reagan got his slot to fill. I had just graduated from law school, and I remember telling my father that I was excited about the first woman on the Supreme Court. My father scoffed and said he didn't expect Reagan to make good on his pledge. He confidently asserted that the nominee would be William French Smith.

"At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes... just shuts down... Still, her anger is often palpable, the color literally draining from her face. "

"And Justice Stephen Breyer on occasion just holds his head.... There isn't a lot of love lost among the court's six conservatives either.... If you watch carefully, you can see conservative eyes rolling from time to time.... [M]any of the conservatives are vying for the position of intellectual leader of the conservative majority, while the chief justice privately worries about going too far too fast. There are, in addition, some long and perhaps not so buried resentments among the conservatives. Alito on occasion barely conceals his disdain for Roberts.... In recent decades, the court has built its legitimacy on a certain degree of moderation — giving the left some of what it wanted and the right some of what it wanted. The left got gay rights and gay marriage, and some limits on presidential power exercised in the name of national security. And the right got expanded religious liberty and expanded free speech, which brought with it expanded corporate spending in elections.... But... the court's conservatives detest each other in the same way that the justices did in the 1940s. Back then, they couldn't agree on anything because, as [Noah] Feldman notes, 'they hated each other.' and even though they might have been able to to reach a consensus, they didn't 'because the hatred was so deep.' To cite just one example of how bad it was, Justice Felix Frankfurter called Justice William O. Douglas 'one of the completely evil men I have ever met.' And Douglas referred to the Austrian-born Frankfurter, who was Jewish, as 'Der Führer' and that was during World War ll."

Writes Nina Totenberg in "Supreme Court justices aren't 'scorpions,' but not happy campers either" (NPR). 

The "scorpion" quote refers to "9 scorpions in a bottle," a famous phrase that Totenberg doesn't give a source, perhaps because it's so famous, but perhaps because the usual attribution — to Oliver Wendell Holmes Jr. — seems incorrect. Noah Feldman's book "Scorpions: The Battles and Triumphs of FDR's Great Supreme Court Justices Paperback" begins with the quote "The Supreme Court is nine scorpions in a bottle," attributed to Alexander Bickel, law clerk to Justice Felix Frankfurter, 1952–53, and drops this footnote:

What's that stench in the courtroom?

Whatever happened to dead baby jokes? I thought, when I saw the headline for Jonathan Turley's column at The Hill: "What's that you smell in the Supreme Court?" 

I knew he was talking about the oral argument in Dobbs, the case about whether to overrule Casey (AKA "Roe"). Sonia Sotomayor had the pro-Roe sound bite — smell bite — of the day. 

Per Turley (perturbingly):

She said many abortion opponents, including the sponsors of the Mississippi abortion law at issue, hoped her three new colleagues would allow for the reversal or reduction of Roe v. Wade. With Justices Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett listening, she asked, “Will this institution survive the stench” created from such political machinations — and then answered: “I don’t see how it is possible."  

Of course, when justices begin to declare their disgust at the very thought of overturning precedent, there is another detectable scent in the courtroom. Indeed, it felt like a scene from Tennessee Williams's play, “Cat on a Hot Tin Roof.” The only thing missing was the play’s central character, “Big Daddy” Pollitt, asking: “What's that smell in this room? … Didn’t you notice a powerful and obnoxious odor of mendacity in this room? There ain’t nothin’ more powerful than the odor of mendacity.”

Of course, when people detect bad odors, there's another famous line that comes to mind: "He who smelt it dealt it."

If we're going to detect lies, and characterize lies as smells, there are lies all around, possibly lies all the way down. If you think the other side's lies — however you define lies, perhaps broadly — smell bad, what about your own lies? Does your shit not stink?

Here's a famous dead baby joke from the 1960s: 

What's harder to unload, a truck full of bowling balls or a truck full of dead babies?

A truck full of bowling balls because you can't use a pitchfork.

That's quoted in the scholarly article "The Dead Baby Joke Cycle" by Alan Dundes (Western Folklore). One of the follow-on jokes to that one is: 

What's worse to be buried under: bowling balls or dead babies?

Bowling balls — you can't eat your way out.

Why were we telling jokes like that in the 1960s and into the 1970s? Why was this overt callousness attractive, and why did it fade out? Jokes play off of anxiety, but maybe after you've laughed enough, you've overcome the anxiety, so there's nothing to cause laughter. What's that smell in this room? If you've been in that room long enough, you can't smell it at all.

Sotomayor predicted a stench that would arise from the new decision — the overruling of Roe. Sotomayor seems to be saying that her new colleagues are disgusting — deplorable — they stink. Or they will stink, if they use their current majority to rewrite the work of an earlier majority that she doesn't find disgusting.

Another clue about what's that smell came from Justice Breyer, who said:

"[T]he problem with a super case like this, the rare case, the watershed case, where people are really opposed on both sides and they really fight each other, is they're going to be ready to say, no, you're just political, you're just politicians. And that's what kills us as an American institution.... and that they say is a reason why... when you get a case like that, you better be damn sure that the normal stare considerations, stare decisis overrulings are really there in spades, double, triple, quadruple, and then they go through and show they're not." 

That is, by the way, the only point in the transcript where anyone uses the verb "to kill." There's no truckload of dead babies on the premises. It's all about the reputation of the Supreme Court as an institution. If it's ever discovered that it's "just political" — key word, "just" — then it is killed! And the stench is the rotting corpse of the dead Supreme Court. Dead, presumably, because even though everyone already knew that the Court was political — is there an older accusation against it? — it had some element that was not political, making it not just political.

"Justice Clarence Thomas, who very seldom voiced inquiries from the bench before the pandemic, asked the first questions of both of the main lawyers in the case."

Wrote Adam Liptak of the NYT, in "One Justice Missing and Only One Masked, the Supreme Court Returns/As a term packed with major cases begins, much has changed since the last in-person arguments took place in March 2020." 

The justices asked questions in the familiar free-for-all fashion that has long been their practice. But they supplemented such free-form questioning with an opportunity for justices to ask questions in order of seniority one by one after each lawyer argued, replicating the format the court used in the telephone arguments while it was exiled from its courtroom.

Interesting. I wonder if they worried that the free-for-all was systemic racism. I think they need to, even though they only have the ultra-small sample of one black person in the group. 

***

Who was that masked Justice? Sonia Sotomayor. 

***

That article went up on Monday, but I'm only just getting around to reading it this morning. The first day of the Supreme Court term feels much less eventful to me than it used to. The break between the end of one term and the beginning of the next seems short. And they do weigh in on things during the interval. Do we miss them when they're (more or less) gone? 

***

Justice Breyer — my favorite Justice based on the way he talks — asked a question about San Francisco fog:

“Suppose somebody came by in an airplane and took some of that beautiful fog and flew it to Colorado, which has its own beautiful air. And somebody took it and flew it to Massachusetts or some other place. Do you understand how I’m suddenly seeing this and I’m totally at sea?"

"My goal today is to convince you that this court is not comprised of a bunch of partisan hacks."

That's funny — intentionally funny, I presume — because "this court is not comprised of a bunch of partisan hacks" is just what a partisan hack would say, and "My goal today is to convince you that" is just the intro that an elite partisan hack would use to butter up an elite audience.

The quote is from "Justice Amy Coney Barrett argues Supreme Court isn't 'a bunch of partisan hacks'" (USA Today).

I'm not calling Barrett a partisan hack. I just want to say that these speeches are so unnewsworthy. Supreme Court Justices always say the same thing — they're not partisans, not political. Justice Breyer is out and about these days — he's got another book — and he's saying the same thing. They need to say it, and I understand why. It's central to their legitimacy. But it's an assertion that they are not abusing their power. What's the good of saying it over and over? You're getting into "protests too much" territory. 

By the way,  I remember when educated people made a point of using "comprise" correctly. Is that over? Is it the new "nauseous" — a word you can only use wrongly or people won't get what you mean?

"Are the reasons you believe that people should not be telling Breyer to retire substantive as much as practical? In other words, is your fear solely that telling him to retire will make him want to do the opposite so as not to appear political, or do you also think that there are good reasons that he should not retire immediately?"

Sometimes one just slams right up against the horrific shallowness of legal scholarship, and you can only hope to have kept enough of your wits about you to feel a slight pain. And so I twinge as I read Isaac Chotiner in The New Yorker. That's his question above, all multilayered but still paper-thin. Tiresomely, he called up a law professor — Noah Feldman — to produce a transcript, thereby creating a text that must look substantial to some readers.