Posted by: Patrick Allen Foster | March 20, 2014

Ginsburg and Breyer

Garrett Epps wrote a good post this week for The Atlantic (“Don’t Tell Ruth Ginsburg to Retire”), about which more later. Among a number of good points, Epps makes the following observations about Justice Ginsburg and Justice Breyer (emphasis added):

Since the retirement of Justice John Paul Stevens in 2010, [Ginsburg] has been the senior justice on the liberal side of the Court. This is an important job—when the Court’s conservatives vote together as a five-member bloc, the senior liberal justice assigns the task of preparing the liberal dissent. The purpose of such a dissent is to discredit the majority’s reasoning and offer future courts grounds to distinguish or overrule the case. Ginsburg often assigns that duty to herself; her major dissents are masterpieces of the genre.

If she were to retire at the end of this term, that leadership role would, for the next few years, fall to Justice Stephen Breyer, 75. (Chemerinsky also suggests that Breyer “consider” stepping down.) Though Ginsburg and Breyer are both “liberals” on this Court’s spectrum, they are a study in contrasts. Where Ginsburg fights, Breyer dithers; where her ideas are clear, his are mercurial; where she draws lines, he wanders across them; where her dissents are straightforward, his tend to be—well—incomprehensible.



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