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'Retire, Breyer': Progressive Group Joins Growing Call for SCOTUS Justice to Step Down
"We cannot afford to risk Democrats losing control of the Senate before a Biden nominee can be confirmed," asserted Demand Justice director Brian Fallon.
Apr 09, 2021
A left-leaning advocacy group on Friday joined the growing chorus of calls for U.S. Supreme Court Associate Justice Stephen Breyer to retire so that President Joe Biden can nominate a liberal replacement while Democrats control the Senate.
"We need to start the process of confirming a Black woman justice now. Tell Justice Breyer: Put the country first. Don't risk your legacy to an uncertain political future. Retire now."
--Demand Justice
Demand Justice published a statement Friday urging Breyer "to retire so that President Biden can appoint the first-ever Black woman Supreme Court justice."
The group--founded in 2018 by former Obama administration staffers amid then-President Donald Trump's successful effort to pack federal courts with far-right judges--launched an online petition declaring that "it's time for Supreme Court Justice Stephen Breyer to announce his retirement."
The petition states that Breyer "has been a distinguished justice, but now is risking the Senate falling into Republican hands before Democrats can confirm Biden's nominee."
"We have waited long enough for a Black woman Supreme Court justice," the petition asserts. "And with a 50-50 Senate, there is no time to waste. We need to start the process of confirming a Black woman justice now. Tell Justice Breyer: Put the country first. Don't risk your legacy to an uncertain political future. Retire now."
Demand Justice also hired a billboard truck that was spotted circling the Supreme Court with the "Breyer, Retire" message.
\u201cJust had this sent to me: Spotted outside the Supreme Court. \n\nComes after our Playbook team previewed this am how activists are pushing \u201cBreyer, Retire\u201d and that this truck would be out and about. \n\nCc: @rachaelmbade @RyanLizza @tarapalmeri @EugeneDaniels2\u201d— Olivia Beavers (@Olivia Beavers) 1617969394
"We are now firmly in the window when past justices have announced their retirement, so it's officially worrisome that Justice Breyer has not said yet that he will step down," said Demand Justice executive director Brian Fallon. "The only responsible choice for Justice Breyer is to immediately announce his retirement."
"We cannot afford to risk Democrats losing control of the Senate before a Biden nominee can be confirmed," Fallon added. "Justice Breyer is not entitled to the benefit of the doubt at this point. Those worried about the court's future should speak up to ensure he understands the need for him to time his retirement wisely."
While campaigning for president, Biden repeatedly said he would nominate a Black woman to the nation's highest court if he had the opportunity--a step he called "long overdue."
"I'm looking forward to making sure there's a Black woman on the Supreme Court," the former vice president said days before the 2020 South Carolina Democratic presidential primary.
The risk of Democrats losing control over the Senate--which confirms Supreme Court nominees--is not limited to the outcome of the 2022 midterm elections. The Hillnotes that if any member of the Senate Democratic caucus from a state with a GOP governor leaves office for any reason, their replacement would most likely be a Republican.
The Senate is currently evenly split 50-50 between Democrats and Republicans, with Vice President Kamala Harris casting a tie-breaking vote in the case deadlock.
\u201c"Justice Stephen Breyer should retire from the Supreme Court: He doesn't believe in court-packing? Or see his conservative colleagues' partisanship? Seriously?"\n\nMy new op-ed for @MSNBCDaily on the future of the Court & the need for Joe Biden to expand it:\nhttps://t.co/jSY9N8gVdD\u201d— Mehdi Hasan (@Mehdi Hasan) 1617892757
According to The Hill:
Ketanji Brown Jackson, a judge on the U.S. District Court for the District of Columbia appointed by former President Obama, is considered a top candidate to make history on the high court. Biden recently nominated her to fill Merrick Garland's open seat on the D.C. Circuit Court of Appeals.
While Demand Justice is the latest group to urge Breyer's retirement, there have been calls for the 82-year-old to retire since Biden's election. In January, University of California, Berkeley constitutional scholar Erwin Chemerinsky toldThe Washington Post that "stepping down when there is a Democratic president and a Democratic Senate to replace him... is his best way of ensuring that someone with his values and his views takes his place."
In 2014, Chemerinsky published an op-ed urging the late Supreme Court Justice Ruth Bader Ginsburg to retire while Obama was in office. She did not, and since she was still serving on the bench when she died last September, Trump was able to replace her with far-right nominee Amy Coney Barrett--his third successful appointment to the high court.
The Demand Justice campaign launched on the same day that Biden signed an executive order establishing a commission to explore possible Supreme Court reforms--including increasing the number of justices as allowed by the Constitution. Breyer's opposition to "court-packing" has been cited by some of those who are calling on him to retire.
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Biden Creates Commission to Study Supreme Court Expansion, Other Reforms
"To restore our democracy, we must expand the Supreme Court," said Rep. Mondaire Jones.
Apr 09, 2021
President Joe Biden won praise Friday for signing an executive order to create a 36-member commission that will analyze arguments for and against reforming the U.S. Supreme Court.
The White House announced that a "bipartisan group of experts" will spend the next six months considering the "merits and legality" of increasing the number of justices on the high court and imposing term limits, among other possible changes.
"Congress has the power, and the constitutional duty, to set the size of the court, as it has seven times throughout our history."
--Rep. Mondaire Jones
Although the commission "will not make final recommendations for reform," CNN reported, many, including Rep. Mondaire Jones (D-N.Y.), applauded the president's move.
Biden "acknowledged that it is time to reform the Supreme Court, following the example of Thomas Jefferson, Abraham Lincoln, and Ulysses S. Grant," Jones said Friday in a statement. "The question is no longer if we will reform the Supreme Court, but how we will reform the Supreme Court."
"The answer to that question is clear," Jones continued. "To restore our democracy, we must expand the Supreme Court. Anything less would leave the future of our nation, our planet, and our fundamental civil rights at the whim of a far-right supermajority that is hostile to democracy itself."
As CNN noted, "The long-awaited commission announcement developed from a pledge Biden made as a candidate last October, as liberals were calling for additional seats to be added to America's high court, to try to bring greater balance to a bench dominated 6-3 by conservatives poised to continue its right turn on abortion rights, religious liberty, and voting restrictions."
While right-wing media personalities like Sean Hannity accused Biden--who has said he's "not a fan" of expansion--of flip-flopping on the issue and GOP lawmakers such as Rep. Jim Jordan (R-Ohio) asserted that "Democrats want pack the Supreme Court," advocates for reform argue that the high court must be unrigged after Republicans distorted its makeup while benefitting from anti-democratic institutions like the Electoral College and antiquated rules in the U.S. Senate.
\u201c5 of 6 conservative Supreme Court justices were appointed by GOP presidents who initially lost popular vote & confirmed by senators representing minority of Americans\n\nThis is why we need to expand/reform the courts\u201d— Ari Berman (@Ari Berman) 1617982415
Former President Donald Trump--who lost the popular vote to 2016 Democratic Party presidential nominee Hillary Clinton by nearly three million ballots--appointed three justices to lifetime positions on the Supreme Court during his one term; that includes far-right Justice Amy Coney Barrett, who was nominated following the death of Justice Ruth Bader Ginsburg on September 18 of last year.
Even though then-Senate Majority Leader Mitch McConnell (R-Ky.) had refused in 2016 to seat Merrick Garland, former President Barack Obama's pick to replace Justice Antonin Scalia following his passing on February 13 of that year--claiming that doing so would be inappropriate when the president was "on his way out the door"--McConnell rushed through Barrett's confirmation just days before the 2020 election.
Earlier this week, Justice Stephen Breyer--an 82-year-old liberal who is facing calls to retire so that Biden and the Democratic-led Senate can fill his seat with a progressive--warned that "if the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court's power, including its power to act as a check on other branches."
Breyer said that reformists should think "long and hard" about their proposals for "structural change or other similar institutional change."
MSNBC opinion columnist Medhi Hasan ridiculed Breyer's remarks, which he called "naive, misguided, and self-serving."
As Hasan wrote:
[W]here on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping? Sen. Sheldon Whitehouse (D-R.I.), a member of the Judiciary Committee, has tallied "80 5-4 partisan decisions by Republican Justices giving victories to big Republican donor interests" in the 15 years since Chief Justice John Roberts was sworn in in 2005. Does Breyer really believe these rulings--in which he dissented!--were all guided by "legal principle, not politics"?
... As for "confidence" in the Supreme Court, how about the fact that a majority of the nine justices were appointed by presidents who lost the popular vote? Or that one of those five, Neil Gorsuch, is sitting in a blatantly stolen seat? Or that two of the nine justices, Brett Kavanaugh and Clarence Thomas, have been credibly accused of sexual misconduct?
... It feels odd for me to have to remind a sitting justice that nowhere in the Constitution does it say there should be nine justices on the court. The court's own website says, "The Constitution places the power to determine the number of Justices in the hands of Congress." In fact, if Biden does eventually yield to pressure from liberal activists and Democratic lawmakers and decides to change the size of the court, backed by a congressional majority, he will be following in the footsteps of five previous presidents.
As APnoted Friday: "The size of the court has been set at nine members since just after the Civil War. Any effort to alter it would be explosive, particularly at a moment when Congress is nearly evenly divided. Changing the number of justices would require congressional approval."
In his statement, Jones noted that "many Americans will rightly be skeptical of a commission composed almost entirely of people protected from the real-life consequences of the Supreme Court's right-wing extremism."
"Nevertheless," he said, "I remain hopeful that the commission will join our rising movement for court expansion."
"In the meantime, Congress has the power, and the constitutional duty, to set the size of the court, as it has seven times throughout our history," Jones added. "My colleagues and I need not wait for the findings of a commission. We know the obvious: we must expand the Supreme Court before it's too late."
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Boulder: Is it Time to End the Second Amendment?
American mass murders are a remnant of our slave patrols; RBG was right that Heller was wrongly decided and needs to be overturned.
Mar 23, 2021
Another mass gun murder just happened in America, the seventh in 7 days, and already "Second Amendment legislators" are offering the 2021 version of thoughts and prayers. Lauren Boebert just tweeted, "May God be with them." Standing in front of her wall of assault weapons, most likely.
And, of course, today on rightwing talk radio and Fox News they've already begun lengthy bloviation about the Second Amendment. So, let's just clear a few things up.
The real reason the Second Amendment was ratified, and why it says "State" instead of "Country" (the Framers knew the difference--see the 10th Amendment), was to preserve the slave patrol militias in the southern states, an action necessary to get Virginia's vote to ratify the Constitution.
It had nothing whatsoever to do with making sure mass murderers could shoot up public venues and schools. Founders including Patrick Henry, George Mason, and James Madison were totally clear on that, and we all should be too.
In today's America, you have the "right" to a gun, but no "right" to healthcare or education. In every other developed country in the world, the reality is the exact opposite.
In the beginning, there were the militias. In the South they were called "slave patrols," and were regulated by the states.
In Georgia, for example, a generation before the American Revolution, laws were passed in 1755 and 1757 that required all plantation owners or their male white employees to be members of the Georgia Militia, and for those armed militia members to make monthly inspections of the quarters of all slaves in the state. The law defined which counties had which armed militias and required armed militia members to keep a keen eye out for slaves who may be planning uprisings.
As Dr. Carl T. Bogus wrote for the University of California Law Review in 1998, "The Georgia statutes required patrols, under the direction of commissioned militia officers, to examine every plantation each month and authorized them to search 'all Negro Houses for offensive Weapons and Ammunition' and to apprehend and give twenty lashes to any slave found outside plantation grounds."
It's the answer to the question raised by the character played by Leonardo DiCaprio in Django Unchained when he asks, "Why don't they just rise up and kill the whites?" It was a largely rhetorical question, because every southerner of the era knew the answer: Well-regulated militias kept enslaved people in chains.
Sally E. Haden, in her brilliant and essential book Slave Patrols: Law and Violence in Virginia and the Carolinas, notes that, "Although eligibility for the Militia seemed all-encompassing, not every middle-aged white male Virginian or Carolinian became a slave patroller." There were exemptions so "men in critical professions" like judges, legislators and students could stay at their work. Generally, though, she documents how most southern men between ages 18 and 45--including physicians and ministers--had to serve on slave patrol in the militia at one time or another in their lives.
And slave rebellions were keeping the slave patrols busy.
By the time the Constitution was ratified, hundreds of substantial slave uprisings had occurred across the South. Blacks outnumbered whites in large areas, and the state militias were used to both prevent and to put down uprisings by enslaved men and women. As I detail in my book The Hidden History of Guns and the Second Amendment, slavery can only exist in a police state, which the South had become by the early 1700s, and the enforcement of that police state was the explicit job of the militias.
Southerners worried that if the anti-slavery folks in the North could figure out a way to disband--or even move out of the state--those southern militias, the police state of the South would collapse. And, similarly, if the North were to invite into military service enslaved men from the South, then they could be emancipated, which would collapse the institution of slavery, along with the southern economic and social "ways of life."
These two possibilities worried southerners like slaveholder James Monroe, George Mason (who owned over 300 enslaved humans) and the southern Christian evangelical, Patrick "Give Me Liberty Or Give Me Death" Henry (Virginia's largest slaveholder).
Their main concern was that Article 1, Section 8 of the newly-proposed Constitution, which gave the federal government the power to raise and supervise an army, could also allow that federal army to subsume their state militias and change them from slavery-enforcing institutions into something that could even, one day, free their enslaved men, women and children.
This was not an imagined threat. Famously, 12 years earlier, during the lead-up to the Revolutionary War, Lord Dunsmore offered freedom to slaves who could escape and join his forces. "Liberty to Slaves" was stitched onto their jacket pocket flaps. During the War, British General Henry Clinton extended the practice in 1779. And numerous freed slaves served in General Washington's army.
Thus, southern legislators and plantation owners lived not just in fear of their own slaves rebelling, but also in fear that their slaves could be emancipated through the newly-forming United States offering them military service.
At the ratifying convention in Virginia in 1788, Henry laid it out:
"Let me here call your attention to that part [Article 1, Section 8 of the proposed Constitution] which gives the Congress power to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States. . . .
"By this, sir, you see that their control over our last and best defence is unlimited. If they neglect or refuse to discipline or arm our militia, they will be useless: the states can do neither ... this power being exclusively given to Congress. The power of appointing officers over men not disciplined or armed is ridiculous; so that this pretended little remains of power left to the states may, at the pleasure of Congress, be rendered nugatory."
George Mason expressed a similar fear:
"The militia may be here destroyed by that method which has been practised in other parts of the world before; that is, by rendering them useless, by disarming them. Under various pretences, Congress may neglect to provide for arming and disciplining the militia; and the state governments cannot do it, for Congress has an exclusive right to arm them [under this proposed Constitution]..."
Henry then bluntly laid it out:
"If the country be invaded, a state may go to war, but cannot suppress [slave] insurrections [under this new Constitution]. If there should happen an insurrection of slaves, the country cannot be said to be invaded. They cannot, therefore, suppress it without the interposition of Congress . . . . Congress, and Congress only [under this new Constitution], can call forth the militia."
And why was that such a concern for Patrick Henry?
"In this state," he said, "there are 236,000 Blacks, and there are many in several other states. But there are few or none in the Northern States. ... May Congress not say, that every Black man must fight? Did we not see a little of this last war? We were not so hard pushed as to make emancipation general; but acts of Assembly passed that every slave who would go to the army should be free."
Patrick Henry was also convinced that the power over the various state militias given the federal government in the new Constitution could be used to strip the slave states of their slave-patrol militias. He knew the majority attitude in the North opposed slavery, and he worried they'd use the new Constitution they were then debating ratifying to free the South's slaves (a process then called "Manumission").
The abolitionists would, he was certain, use that power (and, ironically, this is pretty much what Abraham Lincoln ended up doing):
"[T]hey will search that paper [the Constitution], and see if they have power of manumission," said Henry. "And have they not, sir? Have they not power to provide for the 'general defence and welfare'? May they not think that these call for the abolition of slavery? May they not pronounce all slaves free, and will they not be warranted by that power?
"This is no ambiguous implication or logical deduction. The paper [the Constitution] speaks to the point: they have the power in clear, unequivocal terms, and will clearly and certainly exercise it."
He added: "This is a local [Southern] matter, and I can see no propriety in subjecting it to Congress."
James Madison, the "Father of the Constitution" and a slaveholder himself, basically called Patrick Henry paranoid.
"I was struck with surprise," Madison said, "when I heard him express himself alarmed with respect to the emancipation of slaves. . . . There is no power to warrant it, in that paper [the Constitution]. If there be, I know it not."
But the southern slavemasters' fears wouldn't go away.
Patrick Henry even argued that southerner's "property" (enslaved humans) would be lost under the new Constitution, and the resulting slave uprising would be less than peaceful or tranquil:
"In this situation," Henry said to Madison, "I see a great deal of the property of the people of Virginia in jeopardy, and their peace and tranquility gone."
So Madison, who had (at Jefferson's insistence) already begun to prepare proposed amendments to the Constitution, changed his first draft of one that addressed the militia issue to make sure it was unambiguous that the southern states could maintain their slave patrol militias.
His first draft for what became the Second Amendment had said: "The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country [emphasis mine]: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."
But Henry, Mason and others wanted southern states to preserve their slave-patrol militias independent of the federal government. So Madison changed the word "country" to the word "state," and redrafted the Second Amendment into today's form:
"A well regulated Militia, being necessary to the security of a free State [emphasis mine], the right of the people to keep and bear Arms, shall not be infringed."
Little did Madison realize that one day in the future weapons-manufacturing corporations would use his slave patrol militia amendment to protect their "right" to manufacture and sell assault weapons used to murder people in schools, theaters and stores, and use the profits to own their own political party.
In today's America, you have the "right" to a gun, but no "right" to healthcare or education. In every other developed country in the world, the reality is the exact opposite.
Pointing out how ludicrous this has become, David Sirota (and colleagues) writes in his Daily Poster newsletter today: "Last week, the National Rifle Association publicly celebrated its success in striking down an assault weapons ban in Boulder, Colorado. Five days later, Boulder was the scene of a mass shooting, reportedly with the same kind of weapon that the city tried to ban."
The Second Amendment was never meant to make it easier for mass shooters to get assault weapons, and America needs rational gun policy to join the other civilized nations of this planet who aren't the victims of daily mass killings.
It's long past time to overturn Heller, which Ruth Bader Ginsberg repeatedly argued the Court should do, and abolish today's bizarre interpretation of the 2nd Amendment.
This post originally appeared at hartmannreport.com, but is published here with permission of the author.
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