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Justice Breyer on Retirement and the Role of Politics at the Supreme Court – The New York Times

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3 years ago

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In an interview prompted by his new book, the 83-year-old leader of the court’s liberal wing said he is working on a decision about when to step down.

WASHINGTON — Justice Stephen G. Breyer says he is struggling to decide when to retire from the Supreme Court and is taking account of a host of factors, including who will name his successor. “There are many things that go into a retirement decision,” he said.

He recalled approvingly something Justice Antonin Scalia had told him.

“He said, ‘I don’t want somebody appointed who will just reverse everything I’ve done for the last 25 years,’” Justice Breyer said during a wide-ranging interview on Thursday. “That will inevitably be in the psychology” of his decision, he said.

“I don’t think I’m going to stay there till I die — hope not,” he said.

Justice Breyer, 83, is the oldest member of the court, the senior member of its three-member liberal wing and the subject of an energetic campaign by liberals who want him to step down to ensure that President Biden can name his successor.

The justice tried to sum up the factors that would go into his decision. “There are a lot of blurred things there, and there are many considerations,” he said. “They form a whole. I’ll make a decision.”

He paused, then added: “I don’t like making decisions about myself.”

The justice visited the Washington bureau of The New York Times to discuss his new book, “The Authority of the Court and the Peril of Politics,” scheduled to be published next month by Harvard University Press. It prompted questions about expanding the size of court, the so-called shadow docket and, inevitably, his retirement plans.

The book explores the nature of the court’s authority, saying it is undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.

In the interview, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s majority opinion last year ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Justice Breyer made the point more broadly in his new book. “My experience from more than 30 years as a judge has shown me that anyone taking the judicial oath takes it very much to heart,” he wrote. “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”

That may suggest that judges ought not consider the political party of the president under whom they retire, but Justice Breyer seemed to reject that position.

He was asked about a remark from Chief Justice William H. Rehnquist, who died in 2005, in response to a question about whether it was “inappropriate for a justice to take into account the party or politics of the sitting president when deciding whether to step down from the court.”

“No, it’s not inappropriate,” the former chief justice responded. “Deciding when to step down from the court is not a judicial act.”

That sounded correct to Justice Breyer. “That’s true,” he said.

Progressive groups and many Democrats were furious over Senate Republicans’ failure to give a hearing in 2016 to Judge Merrick B. Garland, President Barack Obama’s third Supreme Court nominee. That anger was compounded by the rushed confirmation last fall of Justice Amy Coney Barrett, President Donald J. Trump’s third nominee, just weeks after the death of Justice Ruth Bader Ginsburg and weeks before Mr. Trump lost his bid for re-election.

Liberals have pressed Mr. Biden to respond with what they say is corresponding hardball: expanding the number of seats on the court to overcome what is now a 6-to-3 conservative majority. Mr. Biden responded by creating a commission to study possible changes to the structure of the court, including enlarging it and imposing term limits on the justices.

Justice Breyer said he was wary of efforts to increase the size of the court, saying it could erode public trust in it by sending the message that the court is at its core a political institution and result in a tit-for-tat race to the bottom.

“Think twice, at least,” he said of the proposal. “If A can do it, B can do it. And what are you going to have when you have A and B doing it?”

Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law. “Nobody really knows, but there’s a risk, and how big a risk do you want to take?” he said.

“Why do we care about the rule of law?” Justice Breyer added. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.”

Term limits were another matter, he said.

“It would have to be a long term, because you don’t want the person there thinking of his next job,” he said.

Term limits would also have a silver lining for justices deciding when to retire, he added. “It would make my life easier,” he said.

Justice Breyer said the court should be deciding fewer emergency applications on its “shadow docket,” in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling on Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Mr. Biden’s eviction moratorium.

In both, the three liberal justices were in dissent.

Justice Breyer said the court should take its foot off the gas. “I can’t say never decide a shadow-docket thing,” he said. “Not never. But be careful. And I’ve said that in print. I’ll probably say it more.”

Asked whether the court should supply reasoning when it makes such decisions, he said: “Correct. I agree with you. Correct.”

He was in a characteristically expansive mood, but he was not eager to discuss retirement. Indeed, his publisher had circulated ground rules for the interview, saying he would not respond to questions about his plans. But he seemed at pains to make one thing clear: He is a realist.

“I’ve said that there are a lot of considerations,” Justice Breyer said. “I don’t think any member of the court is living in Pluto or something.”

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Moe visiting Yorkton as Saskatchewan election campaign continues

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4 hours ago

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October 18, 2024

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Saskatchewan Party Leader Scott Moe is set to be on the road today as the provincial election campaign continues.

Moe is set to speak in the city of Yorkton about affordability measures this morning before travelling to the nearby village of Theodore for an event with the local Saskatchewan Party candidate.

NDP Leader Carla Beck doesn’t have any events scheduled, though several party candidates are to hold press conferences.

On Thursday, Moe promised a directive banning “biological boys” from using school changing rooms with “biological girls” if re-elected.

The NDP said the Saskatchewan Party was punching down on vulnerable children.

Election day is Oct. 28.

This report by The Canadian Press was first published Oct. 18, 2024.

The Canadian Press. All rights reserved.

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Saskatchewan Party’s Moe pledges change room ban in schools; Beck calls it desperate

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15 hours ago

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October 17, 2024

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REGINA – Saskatchewan Party Leader Scott Moe is promising a directive banning “biological boys” from using school changing rooms with “biological girls” if re-elected, a move the NDP’s Carla Beck says weaponizes vulnerable kids.

Moe made the pledge Thursday at a campaign stop in Regina. He said it was in response to a complaint that two biological males had changed for gym class with girls at a school in southeast Saskatchewan.

He said the ban would be his first order of business if he’s voted again as premier on Oct. 28.

It was not previously included in his party’s campaign platform document.

“I’ll be very clear, there will be a directive that would come from the minister of education that would say that biological boys will not be in the change room with biological girls,” Moe said.

He added school divisions should already have change room policies, but a provincial directive would ensure all have the rule in place.

Asked about the rights of gender-diverse youth, Moe said other children also have rights.

“What about the rights of all the other girls that are changing in that very change room? They have rights as well,” he said, followed by cheers and claps.

The complaint was made at a school with the Prairie Valley School Division. The division said in a statement it doesn’t comment on specific situations that could jeopardize student privacy and safety.

“We believe all students should have the opportunity to learn and grow in a safe and welcoming learning environment,” it said.

“Our policies and procedures align with the Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the Saskatchewan Human Rights Code.”

Asked about Moe’s proposal, Beck said it would make vulnerable kids more vulnerable.

Moe is desperate to stoke fear and division after having a bad night during Wednesday’s televised leaders’ debate, she said.

“Saskatchewan people, when we’re at our best, are people that come together and deliver results, not divisive, ugly politics like we’ve seen time and again from Scott Moe and the Sask. Party,” Beck said.

“If you see leaders holding so much power choosing to punch down on vulnerable kids, that tells you everything you need to know about them.”

Beck said voters have more pressing education issues on their minds, including the need for smaller classrooms, more teaching staff and increased supports for students.

People also want better health care and to be able to afford gas and groceries, she added.

“We don’t have to agree to understand Saskatchewan people deserve better,” Beck said.

The Saskatchewan Party government passed legislation last year that requires parents consent to children under 16 using different names or pronouns at school.

The law has faced backlash from some LGBTQ+ advocates, who argue it violates Charter rights and could cause teachers to out or misgender children.

Beck has said if elected her party would repeal that legislation.

Heather Kuttai, a former commissioner with the Saskatchewan Human Rights Commission who resigned last year in protest of the law, said Moe is trying to sway right-wing voters.

She said a change room directive would put more pressure on teachers who already don’t have enough educational support.

“It sounds like desperation to me,” she said.

“It sounds like Scott Moe is nervous about the election and is turning to homophobic and transphobic rhetoric to appeal to far-right voters.

“It’s divisive politics, which is a shame.”

She said she worries about the future of gender-affirming care in a province that once led in human rights.

“We’re the kind of people who dig each other out of snowbanks and not spew hatred about each other,” she said. “At least that’s what I want to still believe.”

Also Thursday, two former Saskatchewan Party government members announced they’re endorsing Beck — Mark Docherty, who retired last year and was a Speaker, and Glen Hart, who retired in 2020.

Ian Hanna, a speech writer and senior political adviser to former Saskatchewan Party premier Brad Wall, also endorsed Beck.

Earlier in the campaign, Beck received support from former Speaker Randy Weekes, who quit the Saskatchewan Party earlier this year after accusing caucus members of bullying.

This report by The Canadian Press was first published Oct. 17, 2024.

— With files from Aaron Sousa in Edmonton

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Promise tracker: What the Saskatchewan Party and NDP pledge to do if they win Oct. 28

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20 hours ago

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October 17, 2024

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REGINA – Saskatchewan‘s provincial election is on Oct. 28. Here’s a look at some of the campaign promises made by the two major parties:

Saskatchewan Party

— Continue withholding federal carbon levy payments to Ottawa on natural gas until the end of 2025.

— Reduce personal income tax rates over four years; a family of four would save $3,400.

— Double the Active Families Benefit to $300 per child per year and the benefit for children with disabilities to $400 a year.

— Direct all school divisions to ban “biological boys” from girls’ change rooms in schools.

— Increase the First-Time Homebuyers Tax Credit to $15,000 from $10,000.

— Reintroduce the Home Renovation Tax Credit, allowing homeowners to claim up to $4,000 in renovation costs on their income taxes; seniors could claim up to $5,000.

— Extend coverage for insulin pumps and diabetes supplies to seniors and young adults

— Provide a 50 per cent refundable tax credit — up to $10,000 — to help cover the cost of a first fertility treatment.

— Hire 100 new municipal officers and 70 more officers with the Saskatchewan Marshals Service.

— Amend legislation to provide police with more authority to address intoxication, vandalism and disturbances on public property.

— Platform cost of $1.2 billion, with deficits in the first three years and a small surplus in 2027.

—

NDP

— Pause the 15-cent-a-litre gas tax for six months, saving an average family about $350.

— Remove the provincial sales tax from children’s clothes and ready-to-eat grocery items like rotisserie chickens and granola bars.

— Pass legislation to limit how often and how much landlords can raise rent.

— Repeal the law that requires parental consent when children under 16 want to change their names or pronouns at school.

— Launch a provincewide school nutrition program.

— Build more schools and reduce classroom sizes.

— Hire 800 front-line health-care workers in areas most in need.

— Launch an accountability commission to investigate cost overruns for government projects.

— Scrap the marshals service.

— Hire 100 Mounties and expand detox services.

— Platform cost of $3.5 billion, with small deficits in the first three years and a small surplus in the fourth year.

—

This report by The Canadian Press was first published Oct .17, 2024.

The Canadian Press. All rights reserved.

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