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MSNBC host Mehdi Hasan has called on liberal Supreme Court Justice Stephen Breyer to retire from the bench after he spoke out forcefully against court-packing earlier this week.
In the piece, published Thursday and starkly headlined “Justice Stephen Breyer Should Retire from the Supreme Court,” Hasan accused Breyer of intentionally overlooking the “partisanship” of his conservative colleagues, and dismissed his position as “naive, misguided and self-serving.”
“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,” Hasan wrote at one point.
In a lecture at Harvard Law School on Tuesday, Breyer argued that politically-driven changes to the Supreme Court risked damaging the rule of law in the United States.
“Our power, the court’s power, has to depend on the public’s willingness to respect its decision,” Breyer said. “Respect even those decisions they disagree with… even when they think the decision is seriously mistaken.”
Breyer added that he hoped to “make those whose initial instincts may favor important structural change or other similar institutional change, such as forms of ‘court-packing,’ think long and hard before they embody those changes in law.”
“If the public sees judges as politicians in robes,” Breyer said, “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.”
“If the public sees judges as politicians in robes, its confidence in the courts, and in the rule of law itself, can only diminish.”
“First, where on Earth has he been over the past two decades as the Supreme Court delivered one partisan decision after another? Napping?” Hasan wrote.
Hasan cited Senate Judiciary Committee member Sheldon Whitehouse, D-R.I., who reportedly tallied “80 5-4 partisan decisions by Republican Justices giving victories to big Republican donor interests” since Chief Justice John Roberts joined the court in 2005.
“Does Breyer really believe these rulings — in which he dissented! — were all guided by ‘legal principle, not politics’?” the columnist continued.
Breyer in his address Tuesday cited a number of recent cases as examples of how the court’s authority has been widely accepted because of Americans’ trust in it — one of them being Bush v. Gore, the case that essentially decided the 2000 presidential election.
“Does Breyer expect us to believe that the conservative justices who delivered these rulings, which taken together helped rig elections in favor of the GOP, can possibly not be seen as ‘politicians in robes’ for these decisions?” Hasan wrote.
“The Mehdi Hasan Show” host then asked whether public confidence in the court has declined because “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?”
Hasan then turned to Breyer’s age. At 82 years old, Breyer has been the oldest member of the court since Ruth Bader Ginsburg’s death last year at age 87.
“These days, RBG is seen as a nearly infallible, almost saintly figure,” Hasan wrote, “but it is worth recalling that in 2013 there were multiple calls for her to retire to allow Obama and a Democratic-led Senate to replace her. She refused — and, well, the rest is history.”
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“Politics aside,” he concluded, “if Breyer is truly concerned about the Supreme Court’s losing the trust and confidence of the people, what does he think a 7-2 conservative-led court, delivering partisan decision after partisan decision, out of step with public opinion, will look like to the average American? What confidence will it command? What credibility will it have?
“So,” Hassan continued, “if you’ve need of a hanger for your robe, Mr. Justice, do let me know.”
Fox News’ Tyler Olsen contributed to this report.
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