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SCOTUS' Breyer Speaks Out on Texas Abortion Ruling

'Very, very, very wrong,' the liberal justice who dissented in the 5-4 decision tells NPR
By Jenn Gidman,  Newser Staff
Posted Sep 10, 2021 7:43 AM CDT

(Newser) – Supreme Court Justice Stephen Breyer recently sat down with NPR, and one big topic that came up was the high court's 5-4 decision last week to let a restrictive ban on abortions in Texas stand, effectively prohibiting women from getting an abortion after their sixth week of pregnancy. It was a ruling that NPR's Nina Totenberg describes as "directly [contradicting] nearly a half-century's worth of abortion precedence," in a decision that was handed down "in the dead of night." Breyer, for his part, didn't disagree, revealing that he thought the ruling was "very, very, very wrong." After a pause: "I'll add one more very." Breyer then noted, "I wrote a dissent. And that's the way it works."

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One of Breyer's beefs was that the ruling came through the court's "shadow docket," meaning it was deemed an emergency case that required the justices handle it quickly, with no oral arguments or drawn-out deliberations, and without much in the way of an explanation. It's a process that has traditionally been used for such time-sensitive matters as stays of execution, and one now mired in controversy, as the Supreme Court has been using it more recently for cases on everything from immigration and voting legislation to laws regarding the pandemic.

And in most of those more recent cases, the high court's conservative majority has come out on top. "It's a huge mistake to decide major things without the normal full argument," Breyer told Totenberg. Still, he made the assurance that the current bench's decisions overall are "more mixed" (in terms of liberal and conservative justices teaming up) than many people might think, and that for this case in particular, the decision to leave Texas' abortion law alone was more of a procedural ruling. "We'll see what happens in that area when we get a substantive matter in front of us," he said.

Still, CNN notes that, via its decision regarding Texas, the Supreme Court's "conservative majority may already have tipped its hand on whether it is poised to reverse or at least undercut Roe v. Wade." Meanwhile, the 83-year-old Breyer also once more addressed the elephant in the room that just won't go away: the subject of his retirement. "I'm only going to say that I'm not going to go beyond what I previously said on the subject," he said, per NBC News. "And that is that I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. And when exactly I should retire or will retire has many complex parts to it." (More from Breyer's NPR interview here.)

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