The Willful Naïveté of Stephen Breyer
At a campaign stop in late October 1932, Franklin D. Roosevelt, then the Democratic candidate for president, remarked that the Republican Party had “complete control of all branches of government.” As Roosevelt saw it, this was a simple statement of fact: The G.O.P. had controlled the White House and Congress for years, and the Supreme Court was dominated by Republican appointees. Yet the response, from leading members of the bar, was swift and indignant. “The Supreme Court,” scoffed a prominent lawyer, “is above and beyond politics.”
That view might be losing its last, or at least its best known, exponent. Justice Stephen G. Breyer’s announcement that he will retire this summer is a capitulation to the realities of politics — namely, the likelihood that Republican ruthlessness leaves President Biden an exceedingly narrow window in which a Supreme Court appointment is possible. The irony is that no one has been more insistent than Justice Breyer that politics do not shape the decisions of justices — that whoever put them on the court and how, justices are noncombatants in partisan wars. This is an idyllic notion, naïve, even, but there is reason to hope it outlasts Justice Breyer’s tenure.
One of Justice Breyer’s favorite epithets — put forward in good-natured protest — is “junior varsity politicians.” This is not, he says, what justices are. I once attended a small discussion he held at a Washington think tank and marveled at his determination to persuade a group of scholars that acrimony among the justices was actually quite rare. He had many admirers in the room but not, from the looks of it, a single convert. Among the cadre of court watchers, Justice Breyer’s faith in the fair-mindedness of Justice Samuel Alito et al. is seen as, at best, a blinkered sort of optimism, at worst a dangerous blindness.
Indeed, even after the Senate Republican leader, Mitch McConnell, had muscled three nominees onto the court — trashing the norms of the appointments process and tipping the court’s balance decisively to the right — there was Justice Breyer, maintaining that his new colleagues had checked their politics at the door. “Once appointed,” he argued in a book published in September, “a judge naturally decides a case in the way that he or she believes the law demands. It is a judge’s sworn duty to be impartial, and all of us take that oath seriously.” Justice Breyer is not the only justice to throw laurels like these — Chief Justice John Roberts and Justice Neil Gorsuch have said much the same — but he alone appears truly to mean it.
In truth, the court’s conservative majority is both a product and a sponsor of partisan conflict. This court has plunged willfully into an era of what the law professors Lee Epstein and Eric Posner, based on a rigorous analysis of decisions, described as “extreme — and alarming” partisan division, and that was in 2018, before the appointment of Amy Coney Barrett gave conservatives a 6-to-3 majority and, with it, an essentially free hand to steer the country to the right.
History has no precedent, Ms. Epstein and Mr. Posner argue, for the degree to which partisan affiliation now predicts the outcome of cases. History has no precedent, I would add, for the extent to which the court’s conservatives now put a constitutional gloss on the malignant practices — gerrymandering; the rush of money into politics; the suppression of voting rights — that strengthen their party’s hold on power. No, these are not J.V. politicians; the court’s conservatives are at the top of their game.
Justice Breyer, without doubt, understands this all too well. For more than a quarter century he has been engaged in a high-stakes and increasingly lonely ideological struggle; while his fellow Americans have gone about their lives, paying only periodic attention to the court, this has been his daily reality. At no point since his appointment by President Bill Clinton in 1994 has the court had a liberal majority. Justice Breyer knows what it is like to write a dissent, and he knows how it feels to lose for what he has consistently said are the wrong reasons: dogmatism, sophistry, outcome-driven judicial activism. He has surely seen how often the reasoning of Justice Alito or Clarence Thomas works its way backward, by twists and turns and pirouettes, from precooked conclusions.
Why, then, insist otherwise? Why contend, as Justice Breyer has, that “all” his colleagues “studiously try to avoid deciding a case on the basis of ideology” when this is manifestly untrue, on matters as diverse as abortion rights and mask mandates? Is this merely self-delusion?
I suspect not, even if Justice Breyer says these things in earnest. It seems possible that what he has been doing all these years is sending his recalcitrant colleagues a message about the nature of a truly judicial temperament. By giving them the benefit of the doubt, vouching for their good faith and expressing his belief that they can rise above bias, he is identifying — and modeling — the qualities he wishes them to possess.
Justice Breyer, for his part, has met his own high standard. While standing firm for liberal principles, he has been a voice of restraint and moderation, trusted by both sides to mark out common ground; temperamentally, he is suited to the task. In cases regarding affirmative action, the separation of church and state, the Affordable Care Act and other divisive issues, Justice Breyer has helped craft compromises. And in 2016, when Senate Republicans’ blockade of Merrick Garland’s nomination left the court with eight justices for over a year, Justice Breyer played an indispensable role in allowing the court to function. Like a coalition government in wartime, Justices Breyer, Roberts, Elena Kagan and Anthony Kennedy crossed ideological lines to meet in the center. In a remarkable series of rulings, they voted as a bloc — making good on Justice Breyer’s promise that “we’ll do our work.”
In 1937, when the court abruptly reversed course, ending the assault it had been waging on the New Deal, Felix Frankfurter, then a Harvard law professor, wrote F.D.R. that everyone could see that “the court is in politics.” That is even clearer today. The comity of the 2016 term seems a distant memory now. The court’s conservatives are on the move, determinedly laying waste to decades’ worth of settled law.
This makes it even more important for President Biden to select a justice not only of Justice Breyer’s caliber, but also of Justice Breyer’s personal qualities. He should choose someone — Mr. Biden says his nominee will be a Black woman — who will bring passion and a certain dispassion to the work, who is willing and able to transcend her predilections. She need not absolve her colleagues of their biases, but must work hard, as Justice Breyer has done, to free herself from her own. Electoral politics has become a race to the bottom. Let the Supreme Court — if, for now, only a few of its members — seek the high ground.
Jeff Shesol (@JeffShesol) is the author, most recently, of “Mercury Rising: John Glenn, John Kennedy, and the New Battleground of the Cold War.”
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