Stephen Breyer worries about the Supreme Court’s public position in today’s political age


In a lengthy two-hour lecture at Harvard Law School, Breyer lamented the common practice – by journalists, senators, and others – of referring to justices for the presidents who appointed them and describing all nine by their approach. conservative or liberal of the Law.

“They’re more than straws in the wind,” said Breyer, 82. They reinforce the thought, probably already present in the reader’s mind, that Supreme Court justices are primarily ‘minor league’ political or political officials themselves rather than jurists. Judges tend to believe that differences between judges mainly reflect differences not political but jurisprudential. That’s not what the public thinks. ”

Breyer also warned against proposals to expand the size of the Supreme Court from its current nine members. Public trust was “built gradually” over the centuries, he said, and any discussion of change must take into account the current public acceptance of the court’s rulings, even those as controversial as Bush v. Gore of 2000 who resolved a presidential election.

“The public now expects presidents to accept court decisions, including those that are politically controversial,” he said. “The court has managed to impose significant control, legal control, over the actions of the Executive in cases where the Executive firmly believes that it is correct.”

He said that people “whose initial instincts may favor important … structural changes, such as … ‘court packaging'” should “think hard before incorporating those changes into the law.”

Proposals for the court’s expansion have been raised by liberal advocates disheartened by the Supreme Court’s long-standing conservatism and its relatively new 6-3 conservative-liberal makeup, since the death last fall of Ruth Bader Ginsburg and the selection Amy Coney Barrett’s former President Donald Trump to succeed her.

Breyer is one of the three liberals, yet he stressed Tuesday that he believes his differences with his colleagues are jurisprudential, rather than based on ideology or politics.

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The court’s six Conservatives were appointed by Republican Presidents, the three Liberals by Democratic Presidents. Breyer said in his speech that decades earlier such political references would not have been part of the news coverage. But decades before, such a clear political and ideological symmetry did not exist.

Republican candidates, such as Judge John Paul Stevens, elected in 1975 by President Gerald Ford, ended up voting with the liberal wing of the bank. Stevens, who retired in 2010, was the last of his kind in this modern era, when presidents carefully select ideology and judges rarely break expectations.

He also regretted the current state of the Senate’s selection of judicial candidates.

“The Senate confirmation process has changed in the last two or three decades, becoming more partisan with senators much more divided along party lines,” he said. Senators often describe a candidate they oppose as too ‘liberal’ or too ‘conservative’. What they say, reported by the press to their constituents, reinforces the view that politics, not legal merits, drive Supreme Court decisions. ”

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Breyer’s speech, delivered while facing a crimson backdrop of Harvard Law and transferred to Zoom, reflected his own broad reading of constitutional guarantees, as well as his aspirations and fears for the current judiciary.

Breyer has written some of the strongest opinions attempting to preserve the milestones on abortion rights and the desegregation of schools. Unlike his colleagues on the right, he has also endorsed the government’s broad regulatory power to protect workers, consumers and the environment.

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A former law professor who never lost his academic flair, Breyer devoted most of his speech to the roots of high court power before delving into some of his current concerns. “It’s a long conference,” he warned at the start of the event, noting that he would take a break midway.

He made references to his service on Capitol Hill for the late Massachusetts Democratic Senator Ted Kennedy in the 1970s and concluded with references to Albert Camus’s “The Plague,” one of Breyer’s favorites even before the country was invaded by the coronavirus pandemic.

Since the inauguration of President Joe Biden in January, Breyer, who was appointed to the position in 1994 by Democratic President Bill Clinton, has regularly seen news comments from his fellow Democrats urging him to stand down while Biden has a Democratic majority in the Senate, if only for the current one. margin of one vote.

Breyer has declined to discuss his retirement prospects and on Tuesday avoided the subject entirely.

If Breyer, the oldest of the nine, announces his retirement in the coming months, it would give Biden a chance to appoint the country’s first black woman justice, as Biden has promised. That probably wouldn’t change the ideological makeup of the bank, but it would enhance its diversity and relative youth.

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Dissent is a ‘failure’

The Harvard conference on Tuesday was part of an annual event honoring the late Justice Antonin Scalia. Breyer advocates a judicial approach that expansively interprets the Constitution, the opposite of Scalia’s method, known as originalism, tied to the 18th century understanding of constitutional guarantees.

However, Breyer and Scalia, who died in 2016, were friends, and at Tuesday’s lecture, Breyer joked about their appearances on the law school circuit.

In his nearly 27 years of service on the high court, Breyer has tried to bridge relations with conservatives, saying he abhors dissent and considers them a “failure.”

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It should be noted that some of Breyer’s most compelling views have been written in dissent. In 2007, for example, he opposed an opinion by Chief Justice John Roberts rejecting the school integration plans in Seattle and Louisville. Roberts said districts cannot consider a student’s race when making school assignments to reduce racial isolation throughout the school district.

“This is a decision that the Court and the Nation are going to regret,” wrote Breyer, whose father, Irving Breyer, was a longtime San Francisco school board member. Breyer still wears the wristwatch his father received when he retired from the district. Breyer said Roberts’s opinion threatened “the promise of” Brown’s 1954 decision against the Board of Education.

Breyer said Tuesday that the differences with his colleagues were based on their differing views on the structure of the Constitution or how they interpreted the statutes. He did not refer to cases in which his own colleagues have publicly questioned the motives of others.

Breyer admitted that sometimes judges weigh public opinion or the future ramifications of a decision. And he acknowledged that all nine are the product of his individual backgrounds and experiences.

Still, he said, “judicial philosophy is not a keyword for ‘politics.’

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