Breyer: The Texas abortion ban decision was "very bad," but not political

Amy Coney Barrett and Stephen Breyer — together again for the first time? Both Supreme Court justices have made public rebuttals over the past few days to charges of politicization, especially in regard to the Texas fetal-heartbeat abortion ban. Breyer makes the argument almost verbatim from his new book The Authority of the Court and the Peril of Politics, which George Stephanopoulos disputes, calling Breyer’s argument distanced from “the world as it is.”

How would Stephanopoulos know what the “world as it is” in the inner workings of the Supreme Court?

Justice Stephen Breyer said Tuesday the Supreme Court’s recent 5-4 decision allowing Texas to effectively ban abortion across the state was “very bad” but not politically motivated.

“We don’t trade votes, and members of the court have different judicial philosophies,” Breyer, the court’s most senior liberal justice, told George Stephanopoulos on ABC’s “Good Morning America.”

“Some emphasize more text. … Some, like me, probably emphasize more purposes. And the great divisions are probably much more along those lines than what we would think of as political lines,” Breyer said.

“I thought that was a very bad decision and I dissented,” he said.

This argument echoes Barrett’s explanation about the difference between politics and judicial philosophy. That is the true distinction, Breyer insists, just as Barrett did earlier this week in Louisville, Kentucky. Breyer made the same argument to the Washington Post in an interview yesterday:

At least two court members see the need to dial down the hysteria over the Texas decision, which is at least grounded in precedent and law. The ruling itself strongly implied that the plaintiffs in this case had insufficient standing for a temporary restraining order, and that there was nothing yet to restrain anyway. There are cases already percolating in Austin that would resolve both issues if the respondents can force them into federal court, which the Supreme Court would eventually have to address on the basis of more acute issues.

Breyer obviously disagrees on the issue of standing and ripeness, and declared that in his dissent. But he also understands the basis on which the other five jurists ruled, and knows that the issue is far from settled. For what it’s worth, although the outcome of the Supreme Court denial of the TRO petition pleases me, I do think that Breyer had the better argument on the law. And when those cases come to the court with the standing and ripeness issues resolved, I suspect that a TRO will be forthcoming, perhaps even explicitly on the basis of Breyer’s dissent.

If and when that happens, the “politicization” argument will fade, at least until the next ruling that cuts against the interests of progressives and media outlets. In the meantime, it looks like the court is unanimous so far on the effort to tamp down this talk. Perhaps they’re looking at what’s happening to Brett Kavanaugh and want to dial down the temperature a bit for their own benefit. Let’s get Breyer and Barrett to do a lecture series for the next couple of weeks before the court’s term starts again on October 4th.

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