Read the story here. Advertise at Before It's News here.
Profile image
By Reason Magazine (Reporter)
Contributor profile | More stories
Story Views
Last hour:
Last 24 hours:

Did Justice Breyer Go IDGAF?

% of readers think this story is Fact. Add your two cents.

On Thursday, the Supreme Court released two opinions: Pereida v. Wilkinson and United States Fish and Wildlife Serv. v. Sierra Club, Inc. The latter case was Justice Barrett’s first majority opinion. The vote in Sierra Club was 7-2. Justice Breyer, joined by Justice Sotomayor, dissented on fairly technical grounds. Justice Breyer agreed with the majority that the case should be remanded back to the lower court. Indeed, Justice Breyer left open the possibility that he would “agree with the majority” opinion. His disagreement was hyper-technical

There is something of a tradition that a Justice’s first decision should be unanimous. Justice Kavanaugh’s first majority opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. Same for Justice Gorsuch.

I suspect that if there was a unanimous majority opinion to be had from Justice Barrett’s first sitting, the Chief would have assigned that case. Perhaps there were no majority opinions from Barrett’s first sitting. Or maybe Sierra Club started off as a majority opinion, but Breyer and Sotomayor fractured off. Still, given this narrow disagreement, I was surprised that Justice Breyer would bother to dissent on Justice Barrett’s first majority opinion. He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.

Now Justice Kagan joined the majority opinion. I have no clue about her views on the substance. But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. Maybe Justice Kagan gave Justice Barrett a join as a courtesy. If so, how do we explain the vote of Justice Breyer, who historically has used his votes strategically to form coalitions?

It’s possible that Justice Breyer has seen the writing on the walls. The conservatives has no interest in working with him to build consensus opinions. The Chief can count to 5 without Breyer’s help. And Justice Breyer may have already told President Biden he plans to retire. At this point, Justice Breyer may be IDGAF. He’s checked out. Call it SCOTUS senioritis. Indeed, originally Justice Breyer’s dissent was not respectful. His opinion originally ended with “For these reasons, I dissent.” But on March 5 at 9:49 a.m., the Court revised the opinion. Now, Breyer’s dissent was respectful.

The fact that Breyer made this change suggests something is afoot with respect to collegiality.

Mike Dorf offers a similar explanation:

Perhaps I’m wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing–at least sometimes.

Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn’t worth the candle.

Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.

It is always risky to read so much into subtle changes in the Court’s decisions. But these two dissent on Thursday felt off.


Before It’s News® is a community of individuals who report on what’s going on around them, from all around the world.

Anyone can join.
Anyone can contribute.
Anyone can become informed about their world.

"United We Stand" Click Here To Create Your Personal Citizen Journalist Account Today, Be Sure To Invite Your Friends.

Please Help Support BeforeitsNews by trying our Natural Health Products below!

Order by Phone at 888-809-8385 or online at M - F 9am to 5pm EST

Order by Phone at 888-388-7003 or online at M - F 9am to 5pm EST

Order by Phone at 888-388-7003 or online at M - F 9am to 5pm EST

Humic & Fulvic Trace Minerals Complex - Nature's most important supplement! Vivid Dreams again!

HNEX HydroNano EXtracellular Water - Improve immune system health and reduce inflammation

Ultimate Clinical Potency Curcumin - Natural pain relief, reduce inflammation and so much more.

MitoCopper - Bioavailable Copper destroys pathogens and gives you more energy. (See Blood Video)
Oxy Powder - Natural Colon Cleanser!  Cleans out toxic buildup with oxygen! 
Nascent Iodine - Promotes detoxification, mental focus and thyroid health.
Smart Meter Cover -  Reduces Smart Meter radiation by 96%!  (See Video)

Immusist Beverage Concentrate - Proprietary blend, formulated to reduce inflammation while hydrating and oxygenating the cells.

Report abuse


    Your Comments
    Question   Razz  Sad   Evil  Exclaim  Smile  Redface  Biggrin  Surprised  Eek   Confused   Cool  LOL   Mad   Twisted  Rolleyes   Wink  Idea  Arrow  Neutral  Cry   Mr. Green

    Load more ...




    Email this story
    Email this story

    If you really want to ban this commenter, please write down the reason:

    If you really want to disable all recommended stories, click on OK button. After that, you will be redirect to your options page.