Ten years in the Supreme Court press gallery leaves one with a few surreal memories. In 2012, for example, former Solicitor General Seth Waxman, arguing against an FCC fine for showing brief nudity on network TV, pointed at the marble courtroom frieze above the startled justices’ heads: “There’s a bare buttock there,” he said, “and there’s a bare buttock here.” In 2011, the Kansas corrections official Margie Phelps, defending her father’s homophobic Westboro Baptist Church, argued that the First Amendment covers even direct harassment unless it is “approaching an individual up close and in their grill to berate them”—leaving the aged justices visibly puzzled about why anyone would interfere with an outdoor barbecue. In 2016, Justice Clarence Thomas produced gasps in the courtroom when he broke a decade-long silence to defend the Second Amendment “rights” of domestic abusers.
by Stephen Breyer
Harvard University Press, 112 pp.
And in 2012, Justice Stephen Breyer, in his unforgettable vocal mash-up of Edward Everett Horton and Mister Rogers’s King Friday XIII, told the lawyer for an American citizen tortured to death by the Palestinian Authority, “I think I have to say that you are on a weak wicket.”
Breyer’s legal point was well taken (the victim’s family eventually lost, 9–0). Yet only Stephen Breyer, the Oxford-educated son-in-law of the Viscount Blakenham, would have bowled a cricket metaphor at an unsuspecting American lawyer.
But fast bowling is all in a day’s work for Breyer, a justice like no other. I must begin this piece by confessing my deep admiration for the man’s intellectual gifts, his good nature, and his idiosyncratic sense of humor. His mind is capacious, lightning fast, and unpredictable. No other justice in history, I daresay, has not only read the more than 4,000 pages of Marcel Proust’s À la Recherche du Temps Perdu in the original French, but read them twice, back to back.
While the conservative justices, by and large, won their seats as courtiers to Republican presidents, Breyer was once a congressional staffer. He knows a great deal about how legislation is actually created and implemented and does not share the majority’s contempt for elected legislators. Breyer is perhaps the last major advocate of legal pragmatism—a venerable system of thought that concerns itself first and foremost not with the abstract meaning of words or the “understanding” attributed to long-dead Framers, but to the real-world consequences of a legal outcome. For Breyer, those consequences are to be assessed for their contribution (or detriment) to “active liberty,” the ability of ordinary citizens to participate in democratic self-government. That liberty, he has argued in the past, is the aim of the Constitution, and interpreting its words without understanding that purpose is, well, simply not playing the game.
This concern with consequences, coupled with a lucid grasp of administrative law and practice, has given rise to some brilliant opinions. My own favorite is his dissent in McCutcheon v. Federal Election Commission. In McCutcheon, Chief Justice John Roberts, writing for a plurality, briskly invalidated a federal statute limiting the number of candidates a wealthy donor could back in one federal election season and the total amount such a donor could give across the board. The case did not challenge the upper limit on each individual contribution, but the federal government argued that striking down the other limits would make the remaining one hard to enforce. Roberts waved away such hesitation: If donors overstepped, Roberts said, then the FEC would simply fine them. In his dissent, Breyer outlined in detail the precise ways that the rich would use to circumvent the FEC (as they have)—then added that Roberts’s trust in FEC enforcement reminded him of Oscar Wilde, who said of the death of Little Nell in Charles Dickens’s Old Curiosity Shop, “One must have a heart of stone to read [it] without laughing.”
As the above suggests, Breyer lives in a world of his own. Sometimes (as in McCutcheon) it intersects with the world the rest of us inhabit. But other parts of it do not. Breyer lays out the view from those other parts in his new book, The Authority of the Court and the Perils of Politics. And it must be said—even by a Breyer admirer like me—that in this particular inning it is he who is on a weak wicket.
The book is based on a lecture Breyer delivered on April 7, 2021—after the contentious 2020 election, the murderous Trumpite invasion of the Capitol, the movement to enlarge or revamp the Supreme Court, and the demands from some Democrats that Breyer retire. Breyer’s defense of the Court acknowledges none of this. But it must be read, at least by implication, as a critique of the project of Court reform and an apologia for his own decision to remain on the Court at the age of 82 rather than allow President Biden to appoint a younger liberal justice. The defense of the Court and of judicial review he offers is such an assemblage of bromides—so close to the boilerplate in any old American government text, and so far from the reality of contemporary American public life—that I, too, am reminded of Oscar Wilde.
The book is, however, not funny. Read it and weep.
In Breyer’s recounting, the Supreme Court’s value derives from its perceived legitimacy: “the public’s willingness to respect its decisions—even those with which they disagree, and even when they believe a decision seriously mistaken.” Current proposals to change the Court’s functions or size risk destroying that willingness, he argues, and thus “the rule of law itself.”
Public acceptance of the Court has served the nation well, Breyer says. To reach that conclusion he provides a distinctly tarted-up version of the Court’s history. True, that unfortunate Dred Scott business caused a spot of bother. But that seems to be the only blot Breyer is willing to concede. Plessy v. Ferguson, with its endorsement of segregation, does not rate a mention, nor do the Civil Rights Cases, which invalidated the visionary Civil Rights Act of 1875. Giles v. Harris, which rendered the Fifteenth Amendment unenforceable on the grounds that white southerners wouldn’t obey it, has a cameo, but Breyer seems to find it a prudent decision about the limits on Court’s authority rather than a cynical surrender to racism. Lochner v. New York and the Court’s 50-year vendetta against economic and labor reform barely rates a mention.
Throughout this history, Breyer says repeatedly, we can all take satisfaction in “the general tendency of the public to respect and to follow judicial decisions.” Take that respect away and
what, then, would have happened to all those Americans who espoused unpopular political beliefs, to those who practiced or advocated minority religions, to those who argued for an end to legal segregation in the South? What would have happened to criminal defendants unable to afford a lawyer, to those whose houses government officials wished to search without probable cause, to those whose property government wished to seize with little or no compensation?
That’s an excellent question, but an incomplete one—for no history of the Court can have any worth if it does not also ask what did happen to the generations of Black Americans doomed to segregation after the Civil Rights Cases and Plessy, to the generations of children who coughed their lives out in the mines and mills after the Court voided federal child labor laws, to the workers who lost the right to unionize when the Court invalidated restrictions against “yellow dog” contracts, to the 120,000 Japanese and Japanese Americans confined in concentration camps approved in Korematsu v. United States, to Native people whose religious practices the Court has treated with contempt in Lyng v. Northwest Indian Cemetery Protective Association and Employment Division v. Smith, to the victims of police violence who to this day can never receive justice because of the Court’s extreme solicitude for law enforcement, to the inmates who die in agony because the Court has lost interest in policing states’ grotesque methods of execution?
Has the Court really, on the whole, advanced human rights and democracy more than it has retarded them? There is a serious case to be made that American society would be freer and happier without the Court’s periodic invalidation of federal and state statutes—that Congress has been over time a far more dependable steward of individual rights than has the Court (or the executive branch). Congress wrote the Thirteenth, Fourteenth, and Fifteenth Amendments as a rebuke to the antebellum Court; a century later, the House and Senate passed the Civil Rights Act and the Voting Rights Act, the twin pieces of legislation that actually brought down southern apartheid.
Breyer surely knows of that argument, but he is unwilling to confront it. Though he admits that the Court has had “ups and downs,” we are by and large asked to take its majesty on faith.
But the Court’s past, even if it were as glorious as Breyer claims, has only limited relevance to the present Supreme Court of the United States. Today’s Court is quite a different kettle of fish from the Court as it existed even as recently as February 2016, when Antonin Scalia died.
Since then, the public has seen one party relentlessly assault all democratic and legal norms in its stunningly successful—and shamelessly explicit—campaign to make the Court into a guarantor of right-wing policy and one-party rule. The abduction of the seat left empty by Scalia; the banana republic–style installation of the accused rapist Brett Kavanaugh; and finally the brutal hypocrisy of jamming Amy Coney Barrett into Ruth Ginsburg’s former seat, have been too blatant and too recent for millions of Americans to ignore. And lecturing the people—telling us we should pretend we didn’t see these acts—just will not do.
As lectures on judging go, Breyer’s is surprisingly devoid of evidence. He insists that judges do not make political decisions. But he bolsters this simply by saying it must be true since they don’t think of themselves as making political decisions, a tautological assurance we as good citizens must accept. Nobody required Stephen Breyer to write this book at this time. But having decided to weigh in on these issues, he owes the nation a decent respect for its intelligence.
He also owes more respect for himself, and specifically his past experience. As a former Senate staffer, Breyer should be far more aware of the institutional realities than this book suggests. As the proponent of active liberty, he should understand that institutions are worthy of our concern only if they actually serve to make a democratic system better. The rest of us do not exist to exalt the Court; justices, no matter how lofty, are our servants, not the other way around.
The Court’s legitimacy, then, is to be regained, if at all, either by the Court’s willingness to give up its current role as partisan enforcer (witness the recent voting rights, gerrymandering, and campaign finance decisions) or by the intervention of the parts of our political system that still believe courts are a part of, not set above and immune from, democracy. The current Court may have a marble palace, it may swathe itself in deference, it may guard its internal secrecy, but it is of little value to anyone unless it serves to defend the American project of self-government under law. That duty has already been stripped from it by the rawest of politics, and demanding reverence from the rest of us is not only futile but also a bit silly. It is akin to Dickens’s Sir Leicester Dedlock and his noble friends in Bleak House, who deplored the lack of public faith in the peerage, “as though a low fellow should unaccountably lose faith in a bad shilling after finding it out!”
But uncritical reverence is what Breyer demands of us. He criticizes the media, which must stop referring to justices by noting the president who appointed them or even describing them as “liberal” or “conservative.” He also instructs senators to cease describing nominees as “too liberal or too conservative, and thus ‘outside the mainstream.’ ” And he tells schools to teach civics once again, so that students understand the importance of the Court.
Given the present conditions, these claims are obviously exasperating. But they’re also somewhat sad. There is an elegiac tone about The Authority of the Court, a threnody to what judging used to be, with echoes of Dylan Thomas:
Good men, the last wave by, crying
how bright
Their frail deeds might have danced
in a green bay,
Rage, rage against the dying of the
light.
Is Breyer determined to rage, to serve as a justice on the Court until he is bloody well ready to leave it, actuarial charts be damned? This book suggests he might.
Being myself well beyond the biblical threescore years and ten, I would never tell such a good man that it is time for him to go gentle into that good night (especially since nothing seems more likely to wedge him into place than such demands by a motley crew of activists and law scholars).
But I will say this: Anyone who really believes in the Little Nell vision set out in this book has been looking down from an Empyrean height at the rest of us for far too long.
