Breyer Frets Over Court Reform, Makes No Mention Of A Potential Retirement | On Abortion, What Are Justices Waiting For?

April 7, 2021

In a talk given remotely to Harvard Law School students, faculty and alumni, JUSTICE STEPHEN BREYER said advocates of reforming or even expanding the Supreme Court should think “long and hard” about what they’re proposing. “Structural alteration motivated by the perception of political influence can only feed that perception, further eroding that trust,” he said. “There can be no shortcuts to it.” Breyer made no mention of his own future plans in light of recent calls for him to step down so PRESIDENT JOE BIDEN can fill his seat while Democrats hold the Senate. However, some are speculating that Breyer’s speech could be read as a kind of swan song.

Ed Kilgore wonders in NY Mag’s Intelligencer why the Supreme Court continues to hesitate to take on a Mississippi abortion case. It has repeatedly been on the list for discussion at justices’ conferences, but a decision on a review remains in limbo. Kilgore breaks this down for us and notes, “There are multiple theories about what’s going on. It takes just four justices to agree to review a case. Quite possibly, there are five or six prepared to begin unraveling the Court’s abortion precedents but no consensus of four on where to start or how quickly to proceed. JUSTICES CLARENCE THOMAS, SAMUEL ALITO, and NEIL GORSUCH are thought to be the Court members most likely to favor direct reviews of Roe and Casey. The chief justice is clearly disposed to be cautious in this area, and JUSTICE BRETT KAVANAUGH, perhaps because of the many assurances he was forced to make about respect for precedents during his confirmation hearings, may be similarly inclined. BARRETT, though widely presumed to oppose a constitutional right to choose, remains a mystery in terms of her strategic thinking on the subject.”

While the justices debate behind the scenes how they’re going to tackle one high-profile abortion case, more keeping coming their way. The state of Tennessee this week asked SCOTUS to reinstate a 48-hour waiting period imposed on women seeking abortions. A lower court found the rule to be unconstitutional because it imposed an undue burden on a women’s right to end her pregnancy —  the standard the Supreme Court applies under Planned Parenthood v. Casey. Jess Bravin with The Wall Street Journal reports.

In January, Volkswagen asked SCOTUS to overturn a lower-court ruling that it says could open up carmakers to regulations from local governments that clash with existing federal rules. Sara Randazzo with The Wall Street Journal reported on Volkswagen’s initial request to the high court, and this week attorneys for Volkswagen filed its reply brief. The company released a statement urging SCOTUS to take up their case: “As Volkswagen, six domestic and international auto industry associations, and former EPA, CARB and DOJ officials have all explained, the Ninth Circuit’s legally flawed decision will create chaos in the auto industry and severely undermine the EPA’s authority. The decision places no limit on the power of all 50 states and thousands of counties to regulate post-sale auto emissions updates and second-guess the EPA’s determinations. The Supreme Court should grant review because of this issue’s importance to the industry, the economy and the environment.”