Report: Stephen Breyer Expresses Mildly Cool Opinion, Immediately Backtracks
The retired justice says it is “quite possible” that federal judges could hold Trump administration officials in contempt. Spicy!
During his final years on the bench, Justice Stephen Breyer remained alarmingly confident that the Supreme Court’s broken fire hydrant of reactionary jurisprudence was nothing for anyone to be concerned about, because his colleagues writing these opinions were nice people with whom he enjoyed earnest debate over their good-faith disagreements. After stepping down and joining the faculty at Harvard Law School, Breyer expounded on his philosophy last year in a book titled Reading the Constitution: Why I Chose Pragmatism, Not Textualism. This is roughly analogous to staring at the smoldering remains of your burned-down house and telling the fire marshal what color paint you think would have looked best on it.
Even in retirement, Breyer has remained reluctant to say anything that anyone might regard as “political.” But in a conversation with his colleague Jack Goldsmith last month, he appeared to soften on this position by somewhere between 8 and 12 percent: According to the Harvard Crimson, Breyer deemed it “quite possible” that federal judges could hold White House officials like Marco Rubio, Kristi Noem, and Pam Bondi in criminal contempt for the Justice Department’s refusal to abide by court orders, and subject them to jail time as a consequence.
As Goldsmith pointed out, enforcing contempt ultimately falls to the attorney general, and Bondi is not likely to effectuate her own incarceration. The Crimson also reports that Breyer quickly reverted to form, tossing out the sorts of liberal bromides that made me spend the better part of 2021 wanting to lie down in traffic. “It is up to you whether we have a rule of law in the United States,” Breyer told the audience. “And if you think the government won’t pay attention to you, you’re wrong.” I understand the sentiment, but given that this administration is disappearing students whose ideas it doesn’t like, I am not sure hitting 2Ls with a jurisprudential spin on “be the change you wish to see in the world” quite meets the moment.
Still, as it turns out, three months of watching Trump pretend the Constitution doesn’t exist is all the Court’s resident hopeless romantic needed to at least ponder the merits of someone in a position of power maybe, possibly holding lawbreaking Cabinet officials accountable. I am not close to greenlighting the production of a Mildly Based In Retirement Stephen Breyer bobblehead or anything, but if he calls a press conference next week to say that Alito leaked the Dobbs draft, it might be fun to at least think about what it would look like.
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…Breyer quickly reverted to form, tossing out the sorts of liberal bromides that made me spend the better part of 2021 wanting to lie down in traffic… 😅😅😅
Brilliant! You really know how to make something so annoying funny!