Harvard law prof says not too late for Justice Breyer ‘to serve country, Constitution he loves by resigning’

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Harvard legal scholar Laurence Tribe tore into Justice Stephen Breyer over his stance in the landmark abortion case Dobbs v. Jackson Women’s Health Organization, calling for his immediate resignation while speciously invoking the Constitution.

“This savage account of Justice Stephen Breyer’s performance in the Mississippi abortion argument is, I’m afraid, entirely fair. It’s not too late for him to serve the country and the Constitution he loves by resigning now. Next summer it will be too late,” Tribe viciously tweeted.

The Slate article in question brutally went after Justice Breyer for not being liberal enough on abortion and for not taking the lead in putting conservatives in their place over the matter.

“The three liberal justices had one goal: persuade their conservative colleagues to uphold Roe v. Wade by hammering home the importance of standing by precedent. Ideally, the senior-most liberal justice would take the lead, guiding his bloc toward a line of questions that, at a minimum, induced doubt, discomfort, and hesitance among his conservative colleagues,” author Mark Joseph Stern argued at Slate.

“In this task, Justice Stephen Breyer failed spectacularly. He zeroed in on the worst possible argument for preserving the constitutional right to abortion in light of the conservatives’ approach to precedent. He gave these justices an opportunity to frame overturning Roe as a victory for the Supreme Court’s independence (when it is actually a direct result of political influence). And he marooned himself in ‘philosophical’ quandaries that drifted further and further away from any semblance of a point. This performance probably won’t, by itself, doom Roe; its fate was likely sealed already. But it does confirm that, by remaining on the bench, Breyer may only undermine the progressive jurisprudence he holds dear,” he contended.

Stern posited that conservatives despise the concept of stare decisis which determines points in litigation according to precedent. Ruling on precedent is not an originalist stance for justices. Issues are decided based on the Constitution, not on the previous ruling of a judge.

Chief Justice William Rehnquist asserted that “once the court starts looking to the currents of public opinion regarding a particular judgment, it enters a truly bottomless pit from which there is simply no extracting itself.”

The late Justice Antonin Scalia had also dismissed the concept as “almost czarist arrogance.” He mocked the practice back in 1992, writing, “We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change–to show how little they intimidate us”

Stern also attempted to excoriate Justice Amy Coney Barrett on her notable pro-life stance.

Slate caustically attacked Breyer for reading “aloud several of the most vexed and disputed sentences of modern constitutional law as though they were widely embraced as the gospel truth.” He was accused of allowing conservative justices to leverage their argument off of his questions.

Chief Justice John Roberts was quoted as asserting, “It is certainly true that we cannot base our decisions on whether they’re popular or not with the people.”

“What’s the paradox?” Breyer asked the court following Roberts’ premise. “Now maybe you think I’ve just made an argument that there isn’t one, but, really, in my head, I’m thinking I’m not sure. There may be one. And I don’t know if you’ve ever thought about this.”

The author at Slate accused Breyer of lobbing a legal “softball” at conservatives.

“Today’s conservative justices do not share their predecessors’ fear of appearing illegitimate. They have secured a 6–3 majority that may endure for decades. Democrats are nowhere close to expanding the Supreme Court; only a minority of progressives have endorsed the idea. Everyone can see the court’s legitimacy slipping, but even as its approval ratings collapse, the conservatives are not fazed,” Stern wrote.

“They are happy to overturn precedent ‘under fire’ because they lack the concern for institutional prestige that compelled their predecessors to maintain stability. Breyer should recognize this, but he does not. And so he warned his colleagues of the dire consequences that will flow from overturning Roe, oblivious to the fact that they have decided the risk is too minimal to heed,” Stern remarked.

“Perhaps there was nothing Breyer could have said on Wednesday that would have moved any of his conservative colleagues. But we will never know, because what he did say highlighted the most indefensible and illogical aspect of pro-choice precedent. Breyer’s discursive performance may have actually hurt the liberals’ chances of a compromise; at best, it did nothing except burn up valuable time. Now more than ever, the liberal bloc needs a strong leader who can ask clear, concise questions that could move the needle leftward. If nothing else, Breyer’s performance during the most important battle over reproductive freedom in nearly 30 years proved that he is not the man for the job,” he concluded.

Liberals have been very vocal in calling for Breyer to retire and allow President Joe Biden to nominate another justice to take his place because he is the oldest justice on the court. It is unclear if he is willing to do so although he has discussed the possibility.


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