Breyer’s Botched Argument


Associate Justice Stephen Breyer, April 23, 2021 (Erin Schaff/Reuters)

I wrote the other day about how surprising it was to see Justice Breyer lead off his questioning at the Dobbs oral argument by regurgitating some lines from the Souter-Kennedy-O’Connor opinion in Casey.

The gist of the Breyer/Casey argument is that it’s very important to not overturn a precedent if there is political pressure to do so. It’s a foolish argument because in any contentious case challenging a precedent there is political pressure to overturn the precedent and there is political pressure to uphold the precedent. In the Dobbs case, it is obviously true that the side applying the most political pressure is the side threatening to pack the Supreme Court if Roe is not upheld.

Over at Slate, liberal writer Mark Joseph Stern is unsparing in his criticism of Justice Breyer’s argument: “During Arguments Over Roe’s Fate, Justice Breyer Played Right Into the Conservatives’ Hands.” 

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