Justice Breyer Says Supreme Court Upholding Texas Abortion Ban Was 'Very, Very Wrong'

Sep 9, 2021
Originally published on September 9, 2021 4:21 pm

U.S. Supreme Court Justice Stephen Breyer described as "very, very, very wrong" the court's recent refusal to block a Texas law that has the effect of banning abortions in the state after about six weeks.

"I wrote a dissent — and that's the way it works," he told NPR legal affairs correspondent Nina Totenberg in an interview in Boston.

The unsigned 5-4 decision — in which three Trump-appointed justices joined two other conservative justices — left open the option for abortion providers to challenge the Texas law in other ways in the future, meaning the case possibly — or even likely — will return to the Supreme Court, though not for months or longer.

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Breyer noted that the court's decision was procedural, "and so we'll see what happens in that area when we get a substantive matter in front of us."

The Texas statute is at odds with the Supreme Court's precedents on abortion. Breyer was joined in the dissent by the court's other two liberals and conservative Chief Justice John Roberts.

The ruling in the Texas case was part of what court watchers have labeled the "shadow docket" — cases decided rapidly, as opposed to the deliberative process applied during the regular term, because the court considers them an emergency.

The number of cases deemed emergency has ballooned since the Trump era.

An analysis of the court's current term, which ends Oct. 3, by Steve Vladeck, a professor at the University of Texas School of Law, found that the court handed down 68 orders on its shadow docket "from which at least one Justice publicly dissented."

"In *none* of those dissents has a Justice to the right of the Chief Justice joined a Justice to his left," Vladeck wrote on Twitter. "That's stunning."

Breyer told Totenberg that the court's opinions overall are "more mixed than you suggest," with liberal and conservative justices in agreement, but in reference to the shadow docket, he said: "It's a huge mistake to decide major things without the normal full argument."

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Supreme Court Justice Stephen Breyer has written a book about the court, its future with an ultra-conservative supermajority and why, even though he's in the liberal minority, he's doubtful about proposals to change the court's structure - the title of his new book, "The Authority Of The Court And The Peril Of Politics." Justice Breyer sat down for a lengthy interview with NPR legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: Breyer enraged lots of Democrats this year when, at 83, he did not retire and give President Biden the chance to name a new and younger liberal justice.

You did pretty well in the 2020 term. You wrote some very important opinions on the ACA, on student speech. You have advanced some important compromises on the court this past term. So, at least as I look at things now, I would guess that at some time relatively early in the upcoming term, you will announce plans to retire. Am I wrong?

STEPHEN BREYER: I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. And when exactly I should retire or will retire has many complex parts to it, and I'm not going beyond what I said for the simple reason that I would like this interview to be about my book.

TOTENBERG: (Laughter).

That's classic Breyer - self-deprecating and brutally honest about his motives. But if his plans on retirement remain obscure, the realities of the court's docket in the upcoming term are not. Abortion, guns and possibly affirmative action in higher education - they're all on the docket. And Breyer made clear in our interview his 27 years on the High Court have taught him an important lesson. It takes years, somewhere between two and five years, for a new justice to really settle in.

BREYER: People have to become acclimatized to that institution and work out who they're going to be as judges. It takes a while.

TOTENBERG: The implication, not said, is that with a docket this inflammatory this term, no new Biden-appointed justice could do as well as he could to prevent or soften what liberals would call a wholesale slaughter of Supreme Court precedents. Our interview, which took place yesterday, came just as the court announced that it would be resuming in-person arguments in October when the term begins. Last term, all the arguments were conducted remotely by phone.

BREYER: And I think it was better to be there, where you can actually see the lawyers and see your colleagues. And you get more of a human interaction.

TOTENBERG: That said, Breyer said there were some advantages to the remote arguments because each justice asked questions in turn for just a few minutes. Instead of the usual oral argument free-for-all, Breyer said that the justices and lawyers had to be more focused in their questions and answers.

BREYER: It stops me from rambling on, and that's a very good idea. And the other very good thing is Clarence Thomas asked questions each time.

TOTENBERG: Thomas, who is the most senior member of the court, has gone for as many as 10 years without asking a question. And Breyer said it was very useful hearing his questions during the arguments. Breyer's book is coming out at an uncomfortable time. Just as he's arguing that the court is not a political institution and that tinkering with its structure is dangerous, the conservative court majority seems to be headed toward carrying out what its critics say is a political agenda. Just last week, a five-justice conservative majority refused to block from going into effect a Texas abortion law that appears to directly contradict Roe v. Wade and nearly 50 years of the Supreme Court's precedents on abortion.

BREYER: I thought the last decision you mentioned was very, very, very wrong. I'll add one more very. And I wrote a dissent.

TOTENBERG: More on that tomorrow on Morning Edition.

Nina Totenberg, NPR News, Washington.

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