Stephen Breyer says now isn’t the time to lose faith in the Supreme Court

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Justice Stephen Breyer is not giving up on the Supreme Court.

In a wide-ranging interview with CNN on Wednesday, the senior liberal justice expressed caution about some of the ideas raised before the presidential commission studying the Supreme Court, asserted the importance of people accepting rulings they dislike, and insisted that despite the discord seen recently in opinions, the justices get along.

“It’s an institution that’s fallible, though over time it has served this country pretty well,” he said. “As Mother used to say: every race, every religion, every point of view possible is held by people in this country. And it’s helped them to live together.”

Breyer’s message has been something of a tough sell, as the nation has grown more polarized and the high court itself has been increasingly riven along political lines. Some critics regard his view as too idealized for the current tumultuous climate.

Yet Breyer, who has been promoting a new book, “The Authority of the Court and the Peril of Politics,” emphasized that controversy over the Supreme Court is as old as the court itself.

“It’s always been controversial,” he said, yet people have traditionally accepted decisions even “that they think are really wrong. … And yet if they don’t, we won’t have a rule of law.”

Breyer’s conversation with CNN comes as the 36-member presidential commission is expected to begin releasing materials related to possible reform proposals. President Joe Biden established the commission as a compromise with liberals who had been pressing him to support an increase in the number of the seats on the high court, to try to counterbalance the current 6-3 conservative dominance.

Breyer said he had not read testimony the commission has taken since last spring and declined to comment on its mission. But he repeated his concern about so-called “court packing” proposals and expressed caution on other ideas raised, including for greater transparency regarding the justices’ process for deciding which cases to take up and their swift action in some disputes without full briefing and arguments.

In his book, Breyer contends divisions among the current justices — six Republican-appointed conservatives and three Democratic appointed liberals — do not arise from political or ideological differences. Rather, he says, they are jurisprudential, tied to their methods of interpreting the Constitution and federal statutes.

Responses to Breyer, after more than a month of his book tour, have been mixed. At an event sponsored by the Smithsonian Associates last week he was heckled by protesters who claimed he was ignoring assaults on American democracy and urged him to retire.

The court has seen deep splits among the justices, notably on disputes over Biden administration policy and the recent order allowing Texas to institute a near ban on abortions at six weeks of pregnancy.

Breyer voted against that order allowing a law that conflicts with Roe v. Wade, the 1973 decision that made abortion legal nationwide, to take effect. He dissented along with the court’s two other liberal justices and Chief Justice John Roberts.

Breyer signed onto a dissent by Justice Elena Kagan that said the conservative majority’s action was “emblematic of too much of this Court’s shadow docket decision-making — which every day becomes more unreasoned, inconsistent, and impossible to defend.” On Wednesday, he sidestepped a question about that statement. When asked more broadly about rhetoric among justices in opinions that has turned especially caustic, he said, “We don’t take offense.”

He raised the example of the late Justice Antonin Scalia, who often laced his opinions with lines mocking his colleagues. Breyer recounted that that he used to say, “Justice Scalia suffers from ‘good writer’s disease,'” that he could not pass up a catchy, but “rude,” line.

Breyer noted that he had appeared with Scalia at Georgetown Law School, where Wednesday’s CNN interview occurred. The conversation took place in the Institute’s moot courtroom, a stately white and crimson replica of the courtroom at the Supreme Court.

“People get on perfectly well,” Breyer said, referring to his current colleagues. “We like to talk to each other. We enjoy each other’s company… I think the members of the court personally get on pretty well.”

Breyer declined to comment on a recent remark of fellow liberal justice, Sonia Sotomayor, that “there is going to be a lot of disappointment in the law, a huge amount.”

Welcoming Barrett

Breyer said he was pleased that the justices had been able to return to the courtroom for oral arguments, after more than a year of teleconference sessions because of the pandemic. Justices will also soon be able to hold a welcome dinner for newest Justice Amy Coney Barrett, confirmed one year ago as a successor to the late Justice Ruth Bader Ginsburg.

Under the court’s usual custom, the next junior-most justice helps arrange the event, which this time would fall to Justice Brett Kavanaugh. “I think Ruth planned the dinner for me,” Breyer added, referring to Ginsburg, who joined the bench in 1993, a year before Breyer.

Breyer said he believed Barrett, who has been an active participant in oral arguments, was settling in “fine” and said it usually takes a new justice three to five years to feel comfortable in the role on the nation’s top court.

“I was pretty nervous the first three years, at least, and maybe a little longer,” Breyer said.

Behind the scenes

The justices receive petitions from thousands of litigants each year who have lost cases in lower courts and hold oral arguments on only about 60. Some witnesses who have testified before the Biden commission have criticized the justices’ processes as opaque, governed by unwritten rules that benefit a small cadre of elite lawyers and their clients.

Speaking specifically of the justices’ private sessions, when they decide which appeals to take up and how to rule on cases already argued, Breyer said, “The reason not to have the transparency is that it very important for people to say what they think … and that’s what happens. So I’m worried about changing that and somehow bringing the public into the conference.” (The private sessions of the nine have long been known as “the conference.”)

Some critics, including in Congress, have argued that the justices should be covered by the decades-old ethics code that binds lower court judges. Breyer said the justices routinely look to that code when considering possible conflicts of interest and whether to disqualify from a case.

He then observed that Supreme Court justices face certain considerations based on their limited number. “When I was a lower court judge,” he said, referring to his tenure on a Boston-based US appellate court, “if there was the slightest question, I’d disqualify myself. Why? Because they can always get another judge. Judges are fungible. When you’re on the Supreme Court, that’s a more difficult decision in a borderline case, because taking yourself out of the case, there’s no one to put in, and you’ll end up with the eight (justices). So it isn’t quite the same thing.”

Retirement talk

Breyer has written seven books, and the publication of this one comes at a particularly complicated time, not only because of recent court actions that seem to undercut his assertions of a non-political court.

Publication coincides with public attention on his retirement plans. Since the election of Biden, Democrats have been calling on Breyer to retire so that the president can appoint a younger liberal.

Democrats fear that their slim one-vote majority in the Senate could evaporate and allow Republican leader Mitch McConnell to recapture the majority. In 2016, McConnell blocked all action on then-President Barack Obama’s choice of Merrick Garland to succeed Scalia.

Asked whether the retirement drumbeat irks him, he said he accepts it, particularly in the context of the constitutional guarantee of free speech, “Does it irk me? The truth is, you can always hope for your more mature self, which is there sometimes. … I mean, really, it’s far from the worst thing in the world, to have people say mean things.”

“Of course, people will get upset about all kinds of things,” he added. “That’s why we have this First Amendment. We have it there, so people will say things that you might not like, I might not like.”

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