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“There are many differences in case law,” Breyer said. “It’s not really fair to say it’s political in the ordinary sense of politics.”
The tribunal is poised to tackle issues that dominate political discourse in the next term, including disputes over abortion, gun rights and religious freedom. Judges sparked an uproar earlier this month when a 5-4 court allowed a controversial Texas law to take effect, banning most abortions in the state while legal appeals unfold, questioning the fate of Roe v. Wade, the 1973 ruling that legalized abortion across the country. Breyer disagreed with the order, saying it could threaten clinics with “imminent and serious damage.”
Breyer told Zakaria he was well aware that liberal groups had launched a campaign to push him to retire so that President Joe Biden had the opportunity to appoint a young progressive to the bench, particularly while the Senate looks at Democrats.
“I don’t live on Pluto,” said the 83-year-old judge, “which means I stay, I think, aware of what’s going on in the land as best I can.”
He admitted that while he will eventually retire, “because I don’t want to die over there in power,” he hasn’t decided exactly when. “There are a lot of considerations,” Breyer said. “But not here, not now.”
Breyer is in the process of promoting his latest book, “The Authority of the Court and the Peril of Politics,” based on a previous Harvard speech in which he worried about the possible erosion of public confidence in opinions of the court and criticized the practice of referring to judges by the party of the president who appointed them rather than by their case-law differences.
He has repeated his familiar mantra over the years that the tribunal is not made up of ‘junior college politicians’.
In Sunday’s interview, he said that with presidential appointments, over time, the tribunal can adapt to political circumstances, but rejected any notion that it would be blinded by a new reality that the tribunal has become more ideological in recent years. “If you go back in history, you know the court has had its ups and downs.”
Defending the court, Breyer said he had never seen his colleagues exchanging votes and pointed to some cases involving burning issues that did not break down along familiar ideological lines. He said the court was responding to an audience seeking the rule of law.
“It is not too difficult to see what is happening in countries and places and times when people do not respect the rule of law,” he warned.
This week, two conservative judges also argued that the court is above politics.
“I think the media gives the impression that you always go straight to your personal preferences,” Thomas said. “So if they think you are anti-abortion” they think “this is how you will always do it”.
“It’s a problem,” Thomas said. “You are going to jeopardize all confidence in legal institutions.”
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