A particularly astute listener may have picked up on the fact that I have a soft spot for Breyer. It is subtle, and I try to stay non-biased, but sometimes I will let slip how entertained I am by him. I’ll be perfectly clear: when I visit my family in Cambridge, I certainly don’t act like a child on Christmas Eve by holding my breath at every corner with hopes of spotting the mythical man. That would be creepy. Personal quirks aside - I have a few thoughts about the current “peer” pressure against Justice Breyer.
For those of you who have not been following the flood of opinion pieces about the end of the 2020 Supreme Court term – why not? Are you studying for the bar or something? – here’s the gist: liberals want Breyer to GTheckO. Some articles are nice enough to say, “you’ve had a good run, Breyer, now let someone else have a turn,” while others smarmily urge, “don’t make the same mistake RBG made.” The latter make my skin crawl.
To be fair, there are some who have resisted against the onslaught of Retire-Breyer mania such as Dahlia Lithwick and Noah Feldman. However, their reasoning irritates me almost as much as the “don’t make the same mistake as RBG” crowd. (Seriously, that woman was a tank and she made no mistake; she had every intention of sitting on that bench until the day she physically couldn’t. And that is exactly what she did.) The resisters are not actually in support of Breyer staying on the bench, they simply think that pushing will make him stubbornly dig his feet in deeper. They are probably right. But the message is still wrong.
My position stems from two values: respect for Breyer and respect for the Court. Of all the Justices to ever serve, Breyer is one of the most outspoken about keeping politics out of the Court. He has spent the past several months virtually lecturing at universities and organization conferences to promote his book, The Authority of the Court and the Peril of Politics. And yet he is the one Democrats are telling to retire because now is the opportune time to get a new liberal Justice in to replace him. Not only does that disregard everything Breyer stands for, it’s an afront. It is perfectly fine to disagree with Breyer’s idealistic perception of the Court as an apolitical institution, but it is insulting to lobby for him to drop these ideals and submit to the exact premise that he opposes. Leave now so that OUR side can get a new Justice and THEIR side can’t. If this message was directed at any other Justice on the bench, I would be upset. But the fact that this hyper-politicized, mine-against-yours lobbying is being directed at Breyer – the Justice who is fighting tooth and nail to convince his country that the Court does not conform to political whim – it’s appalling. Justice Breyer has served for 27 years, joining “liberal” and “conservative” justices alike; signing onto opinions that were popularized as left-wing[1] and right-wing[2]; defending liberty and enforcing rule of law; interpreting the constitution textually and actively. Yes, his active-liberty approach may conform more closely to the modern “liberal” values than firm textualism. However, this philosophy does not reduce him to a side. That is not how judicial philosophy works. That is not how cases are decided. In fact, that is the exact mindset he has been vigorously refuting: the Court is not an arena of yours v. mine. Telling Breyer to retire now while our team is up to bat is only perpetuating the very notion he is advocating against. Which brings me to my second value: not making the Court an arena of yours v. mine.
Maybe Breyer is naïve; maybe apolitical justice is an illusion; maybe the Court is comprised of Bush-people, Clinton-people, Obama-people and Trump-people. Are you happy with that? Let’s face it: the founders had no idea how to set up a neutral court system that was divorced from the crown. After all the excitement of Articles I and II, they gathered around and started Article III section 1: “The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Then they all looked at each other and said, “we will figure the details out later.” Ultimately, the purpose of the separate Article was to separate the Courts from the other branches of government; something they never had the luxury of experiencing back in England. So there it sat, on its own little branch , when Justice Marshall swooped in and solidified the position. From there, this institution – balanced on a couple of lines of constitutional text – built the prestige, reputation and respect that it (mostly) enjoys today. Have there been biased Justices? Yes. Racists? For sure. Misogynists? Of course. Republicans? Currently. Democrats? Currently as well. Independents? Maybe.[3] Should this impact the decision? Not at all. That’s the point. The roll of a judge is to interpret the law, not to make it. The Court doesn’t have constituents to please or popularity contests to win. Nor would I want it to. I don’t want to risk my liberties on the whims of the current popular trend.[4] I don’t want my side or your side to have the final say on what my liberties should be. I never wanted Trump Justices and I will never want Biden Justices. I want a neutral Court. I want a Justice who can set aside their political affiliations in order to uphold the founders’ intention of separating politics from justice.
Don’t retire, Justice Breyer. Or do; it’s your choice. But don’t you dare retire just to free up a seat. I don’t want a Justice who is nominated by a Democratic president because it is convenient for my political party. I want a Justice who cares about the judicial process and keeping it out of politics.
“There are loads of countries that have nice written constitutions like ours. But there aren't loads of countries where they're followed. And the reason that they're followed here is not simply because of the judges. It's because of the Civil War. It's because after 80 years of segregation you had a decision of Brown v Board that said people will be treated equally. And then many years before that became real, and gradually over time, 270 million people have learned roughly the importance of following that constitution and following that law. It's complicated. It's called habit. It's called respect for the constitution, and it's called respect for the institution of the judiciary. And that grows slowly. People have to be educated and they have to stick to it. If people lose that respect, an awful lot is lost.” Justice Stephen Breyer, PBS, https://www.pbs.org/wgbh/pages/frontline/shows/justice/interviews/supremo.html (1999).
Footnotes: [1] E.g., Whole Woman’s Health v. Hellerstedt, Lawrence v. Texas, Obergefell v. Hodges, National Federation of Independent Business v. Sebelius, June Medical Services v. Russo and California v. Texas.
[2] E.g., Bush v. Gore, Board of Education of Independent School District #92 of Pottawatomie County v. Earls, Stokeling v. United States, Limtiaco v. Camacho, James v. United States, Maryland v. King, Maracich v. Spears, Adoptive Couple v. Baby Girl, Mitchell v. Wisconsin, Armstrong v. Exceptional Child Center, Prado Navarette v. California, United States v. Home Concrete & Supply, Williams v. Illinois and City of Chicago v. Fulton.
[3] Someone, please confirm: was Felix Frankfurter a registered Independent when he was nominated? [4] I don’t even know how to Tik Tok.
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