Colbert Argues to Breyer: ‘Right-Wing’ SCOTUS Justices Illegitimate

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While talking to liberal Supreme Court Justice Stephen Breyer on CBS’s Late Show Tuesday night, leftist host Stephen Colbert argued that “right-wing” members of the Supreme Court weren’t really legitimate because they “were appointed by presidents who did not have a majority of the vote when they were elected.” In addition, Colbert ranted against pro-life legislation in Texas and pestered the 83-year-old Breyer over when he was going to retire.

“I’m curious, you say that people need to work to improve the institutions, the Supreme Court being one of the institutions. What would you change to improve it?,” Colbert wondered at one point in the lengthy exchange. Rather than accept the premise of something being wrong with the high court, Breyer marveled: “There are 331 million people. There’s every race, every religion, every point of view. And somehow, through a miracle, they’ve come together and learned how to live together in one country, and we see all those people in front of us working out their major differences under law…”

 

 

In response to that optimistic view of the judiciary, Colbert sought to undermine the institution with nasty partisan rhetoric:

I guess what I thought of when you were saying that is, I think those 330 million people, many of them would say they do not see the Court as being representative because many of the people on the Court, mostly those who lean more toward the right wing of the Court – if there is such a wing in your mind – were appointed by presidents who did not have a majority of the vote when they were elected, by a Senate, a Republican Senate confirmed, that represents 41 million fewer Americans than the Democrats in the Senate. And while you yourself may not be political – and I accept that – the Court itself is created through a political system that no longer represents the majority of the American people.

By that logic, Breyer himself or the late Ruth Bader Ginsburg should have never been on the Court since they were nominated by Bill Clinton, who failed to win a “majority of the vote” in the 1992 presidential election. Of course the reliably liberal audience greeted Colbert’s wild commentary with cheers and applause.

Earlier in the interview, Colbert launched into a tirade against the Texas abortion law and praised Breyer for declaring the Supreme Court’s decision not to block the legislation “very, very, very wrong”:

Big news is the Court’s refusal to block the Texas abortion ban law, even before they ruled on the constitutionality of it. Not to put some sort of hold on the law. You said to NPR that that decision by the Court was “very, very, very wrong.” Why only three verys?…Putting aside, you know, the tacit endorsement of an essential overturning of Roe in Texas, have you ever seen an example of any law of citizens being deputized to be the people to enforce it? Which is what is happening in Texas….which is how the Texas lawmakers are trying to do an end run around judicial review….that is one of the most shocking things about it to me, because it is so flagrantly an attempt to do an end run around judicial review.

Wrapping up the discussion later, Colbert made sure to speak for the far left as he pressured to Breyer to retire so President Biden could name his replacement: “The last question is, are you gonna retire?…Essentially when people say, when are you gonna retire? They’re afraid you’re gonna die when a Republican’s in office and they won’t replace [you with] someone who is more in keeping with your judicial philosophy.”

The supposed “comedian” wondered: “How do you feel about all the speculation about how long Stephen Breyer’s gonna live?” However, it was Breyer who got the laughs when he quipped: “I, myself, would prefer not to die, period.”  

It’s interesting that left-wing activists like Colbert accuse Texas of trying to do “an end run around judicial review” even as he argues that a majority of the nine justices shouldn’t even be allowed on the Supreme Court.

Colbert’s attempt to de-legitimize the judicial branch was brought to viewers by E-Trade and McDonald’s. You can fight back by letting these advertisers know what you think of them sponsoring such content.

Here are excerpts of the exchange, aired early on the morning of September 15:

12:10 AM ET

(…)

STEPHEN COLBERT: Big news is the Court’s refusal to block the Texas abortion ban law, even before they ruled on the constitutionality of it. Not to put some sort of hold on the law. You said to NPR that that decision by the Court was “very, very, very wrong.” Why only three verys? (Applause) Why only three? Why such restraint?

STEPHEN BREYER: You want to know the truth?

COLBERT: Yes.

BREYER: You missed one. (Laughter)

COLBERT: You did four verys? Okay, I’ll talk to our research department.

BREYER: Well, one was sort of quiet.

COLBERT: Putting aside, you know, the tacit endorsement of an essential overturning of Roe in Texas, have you ever seen an example of any law of citizens being deputized to be the people to enforce it? Which is what is happening in Texas.

BREYER: In Texas, you know, you used to have posses.

COLBERT: Sure.

BREYER: And if you’ve seen western movies, which you have, you will know that any 10 people can get together, and they can, in certain circumstances, be a posse that goes out and captures the outlaws. Well, you asked me for an example. I didn’t say it was –

COLBERT: Is that the same example, Mr. Justice? Because those people are being deputized to be part of the government, essentially, to be government agents. Whereas these people are staying citizens, which is how the Texas lawmakers are trying to do an end run around judicial review. Isn’t that a different situation?

BREYER: Yes. (Applause and cheering)

COLBERT: Excuse me. Checkmate! So I’m sorry, I interrupted you congratulating me for being right. Go ahead. Thank you very much. (Laughter) So there is no other example you can think of, other than the posse, which isn’t the actual example?

BREYER: Well –  

COLBERT: No, but that is one of the most shocking things about it to me, because it is so flagrantly an attempt to do an end run around judicial review.

BREYER: The truth is, in that matter, what they had before us, it was a procedural question. We didn’t get to the merits of the law.

COLBERT: Right.

BREYER: And one of my objections, which was pretty strong – it counts for one of the verys –  is when we have an important case like that, even if it’s procedural, we should have a full proceeding and not decide it just on the basis of an emergency motion, which that was. (Applause).

COLBERT: You also, you also — you and Sotomayor said, “I dissent,” instead of the traditional, “respectfully dissent.” Is that a Supreme Court mic drop? What is that? Is that like a dis? What is that?

BREYER: I mean, it could be, but it needn’t be. It could be that I just forget to put in the code, you know. (Applause).

COLBERT: Could be, could be.

(…)

12:19 AM ET

COLBERT: Do you have – I’m curious, you say that people need to work to improve the institutions, the Supreme Court being one of the institutions. What would you change to improve it?

BREYER: In the court?

COLBERT: Your court, the Supreme Court.

BREYER: Well, of course, I’m tempt to say, which is a frivolous remark, but I’m tempted to say people could agree with me all the time, but that is a frivolous remark. And the answer is, gradually, over time, over quite a long time, I’ve come to realize – and it’s sort of, I should have realized it from day one, but, I mean, you internalize it – this is a big country. There are 331 million people. There’s every race, every religion, every point of view. And somehow, through a miracle, they’ve come together and learned how to live together in one country, and we see all those people in front of us working out their major differences under law and not with guns or other things that are really inappropriate and dangerous. (Applause)

COLBERT: I guess what I thought of when you were saying that is, I think those 330 million people, many of them would say they do not see the Court as being representative because many of the people on the Court, mostly those who lean more toward the right wing of the Court – if there is such a wing in your mind – were appointed by presidents who did not have a majority of the vote when they were elected, by a Senate, a Republican Senate confirmed, that represents 41 million fewer Americans than the Democrats in the Senate. And while you yourself may not be political – and I accept that – the Court itself is created through a political system that no longer represents the majority of the American people. (Applause)

(…)

12:34 AM ET

COLBERT: The last question is, are you gonna retire?

BREYER: Am I going to retire?

COLBERT: Just curious.

BREYER: Eventually, I don’t want to dodge it.          

COLBERT: Okay. You’ve said that there are so many – a lot of factors involved in it, and I trust that there are. How does it feel – George R.R. Martin gets mad when people ask him to write The Winds of Winter because they say, “You’re gonna die before you finish the series of books.” Essentially when people say, when are you gonna retire? They’re afraid you’re gonna die when a Republican’s in office and they won’t replace [you with] someone who is more in keeping with your judicial philosophy. How do you feel about all the speculation about how long Stephen Breyer’s gonna live?

BREYER: I, myself, would prefer not to die, period. (Laughter)

COLBERT: If you could rule on it?

BREYER: Right, right. (Applause) And George R.R. Martin, didn’t he write Game of Thrones?  

COLBERT: Yes, he did, they’re waiting for him to do it. He hasn’t finished it yet. That’s why they’re eager for him to not retire from the scene.

BREYER: I mean, I have thought, when seeing that, if only I could write the Game of Thrones. But I can’t do it.

COLBERT: But if you could, you would retire?

BREYER: No. I – well, let’s not –

COLBERT: Because there are some people out there who would find you a ghost writer, I think, in a minute. What would do you if you did retire? If you could retire, or if this was the right time, what would your plans be?

BREYER: I’m not sure.

COLBERT: Like, what’s fun for you?

BREYER: I’m not sure.

COLBERT: Hiking, woodworking?

BREYER: Cooking.

COLBERT: Cooking?

BREYER: Yeah.

COLBERT: Oh, okay. You’re going to get a lot of really nice pots and pans after this interview. (Laughter and applause) And if you retire, you can accept them.

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