Justice Breyer's Dying Dream: A Book Review and Elegy

Some day 83-year-old Associate Justice Stephen Breyer of the United States Supreme Court will die. It may be tomorrow. It may be in a decade. But it will happen. The dream which animates his professional life, however, is dying before our eyes. Justice Breyer dreams that Supreme Court Justices, while certainly motivated by judicial philosophies and life experience, are never motivated by the politics of the President that nominated them. Breyer argues that the dream is still alive in his new book The Authority of the Court and the Peril of Politics, but his argument does not persuade.

The legal culture that made Justice Breyer

It is understandable that Breyer would hold on to the dream. For a significant portion of his life in the law it had credibility. When a young Breyer clerked for Associate Justice Arthur Goldberg during the 1964-1965 Supreme Court term, it was the hey-day of the Warren Court. It was a period of Supreme Court history remembered for its expansive liberalism. Because of the association of the Warren Court with liberalism, it can come as something of a shock to recall that Warren was nominated by Republican President Dwight D. Eisenhower. 

Warren was no anomaly. When Stephen Breyer joined the Supreme Court in 1994, he replaced Harry Blackmun, who was nominated by Republican President Richard Nixon. When Justice Blackmun began his tenure on the Court he so frequently voted with the ideologically conservative Chief Justice Warren Burger that the media dubbed the pair of old friends from Minnesota “the Minnesota Twins”. 

Over their shared tenure on the court, however, Justice Blackmun started drifting to the left of his fellow Minnesotan. According to his biographer Linda Greenhouse during Blackmun’s first five years on the Court (1970-1975), Justices Blackmun and Burger voted the same on close cases 87.5% of the time. In contrast, during the last five years before Burger’s retirement (1981-1986), Justices Burger and Blackmun voted the same on only 30.4% of close cases. It can be surprising to remember that Justice Blackmun wrote the majority opinion in Roe v. Wade in 1973, establishing a constitutionally protected right to abortion, during his ostensibly conservative period. The conservative Chief Justice Burger joined Blackmun’s majority opinion in Roe and also wrote a concurrence.

For most of Breyer’s legal career prior to joining the Supreme Court it was harder to predict where judges would go in individual cases and throughout the course of their career. During that period, it would have been justifiable to say, as Breyer does in his book, “If political groups support, or a president appoints, a justice whose jurisprudential philosophy will, they believe, advance some political agenda in the long run, so be it. To a judge, that would seem a recipe for frustration.”

But as Breyer entered the Supreme Court, the ground began shifting. As Breyer himself notes, over the past few decades there has been “a gradual change in the way the media, along with other institutions that comment on the law, understand and represent the judicial institution.” Breyer laments, “Several decades ago, few if any… reporters and commentators, when reporting a decision, would have mentioned the name or political party of the president who had nominated a judge to office. Today the media do so as a matter of course” 

On top of the media narratives, Breyer observes the Senate confirmation process for Supreme Court Justices “has changed over the past two or three decades, becoming more starkly partisan.” Breyer recalls that once nominees to the Supreme Court enjoyed “broad bipartisan support” when presented to the Senate for confirmation, but “recent confirmations have become essentially party line votes.”

This is all obviously true, but it’s interesting that Breyer never considers that the perceptions of media commentators and United States Senators could be accurate. That in fact it’s not just everyone else who has become more partisan, but that the judicial nominees themselves have become more partisan. 

The arguments Breyer presents in his new book go a long way to explain why he never seriously entertains this possibility. First, he presents a version of Supreme Court history that is a slow and stately march towards greater and greater institutional legitimacy. His story completely ignores the incredibly divisive political impact the Court has had, even as one of its most famous decisions has little concrete impact. He also mischaracterizes what most people mean when they say Supreme Court Justices are political, assuming that people are referring to almost every opinion the Justices deliver from the bench. 

Furthermore, Breyer’s definition of politics is so cramped that it would be impossible for any Supreme Court Justice to ever fall afoul of it . And just in case any reader might still find the actions of Supreme Court Justices political, he obscures the partisanship by describing what the public perceives as partisan disputes as differing “philosophies” or “outlooks”. The facts on the ground stand in stark contrast to these amorphous abstractions.

A Sunday school history of the Supreme Court

In the first section of his book, Breyer provides a quick overview of how the Supreme Court acquired enough institutional prestige that the other branches of government would defer to it. The history, like a dream, is sketchy, full of questionable leaps, and a distorted sense of causality that would take multiple essays to disentangle. To keep things brief, I will focus on his analysis of the Supreme Court’s 1954 decision in Brown v. Board of Education. 

As most readers will recall, Brown held that segregating children into different public schools based on race was inconsistent with the 14^th Amendment’s guarantee of equal protection under the law. Breyer offers this case as an “example [of] the growth of the Court’s power”. That reading is certainly consistent with the popular public perception regarding Brown.

Brown’s status in the public imagination, however, is out of sync with the decision’s actual effectiveness. The Court’s holding led to massive backlash in the United States generally, and in the South in particular. Southern politicians and their constituents didn’t defer to the Court’s judgment. Instead they promised “massive resistance”. Breyer concedes this point: “What happened next in 1955 [to further school desegregation]? Virtually nothing. And in 1956? Almost nothing again. Congress did nothing. The president did little. And the South only complied minimally with the Court’s ruling.” Even when the federal government intervened militarily in Little Rock in 1957 Breyer observes that the Little Rock School District “went so far [the next year] as close the school. That year, no student at Central High, white or black, received an education.”

Breyer immediately pivots away from these sobering facts and begins discussing Martin Luther King, Jr. and the civil rights movement. In doing so, Breyer tacitly concedes that the civil rights movement’s activism is what actually killed statutory racial segregation in the United States. So why does he continue to believe that Brown provides an example of the public’s deference to the Court’s prestige? Breyer relies on two pieces of evidence. First, a conversation Breyer once had with the late civil rights activist Vernon Jordan, who said Brown was definitely “a catalyst” for the civil rights movement that followed. Second, the fact that he “fervently believe[s]” Brown increased the Court’s prestige even though he admits “I cannot prove this assertion.”

I leave it to the reader to weigh the historical record against Breyer’s cocktail anecdotes and personal convictions. Breyer just assumes the latter are superior and goes on to praise “the culture of respect” that flowed to the Court from its decision in Brown. And what did we get from this “culture of respect”? According to Breyer, the ability to peacefully accept the Court’s 5-4 decision in Bush v. Gore, foreclosing Florida’s ability to follow its own election recount laws, effectively declaring George W. Bush president.

Breyer seems to think that arguments like this will make liberals realize that court packing is too radical a solution to the (by his light mistaken) belief the Supreme Court is partisan. I have to confess complete mystification as to why he thinks this.

Justices are rarely controversial and never political

But we can grant Breyer this, overall we’ve developed a culture of deferring to the Supreme Court’s rulings on contentious Constitutional issues. Liberals didn’t go to the streets throwing Molotov cocktails after Bush v. Gore, conservatives didn’t bomb local government offices handing out marriage licenses to gay and lesbian couples after Obergefell v. Hodges. But Breyer’s dream is bigger than that, in his mind the Court is not a political institution, but an institution of legal philosophers reaching decisions based on their idea of justice, not ideology. What does he do to rebut what he sees as the public’s erroneous perception of partisanship? 

Breyer starts by noting the obvious: most of the cases the Supreme Court handles are not controversial at all. They do not raise major partisan issues. This is obviously true, but not responsive to what most people mean when they say Supreme Court Justices are “partisan”. They are referring to the narrower set of cases that touch on divisive issues such as abortion, religious freedom, and whether freedom of speech relates to union dues and campaign finance law. They aren’t referring to cases where the Supreme Court answers whether “a house-like plywood structure” counts as a “vessel” under Section 3 of the Rules of Construction Act. 

Breyer is more responsive to actual, rather than imagined, critiques when he gives a definition what he means by “politics”. Unfortunately, like his dismissal of the massive resistance to Brown, Breyer reverts once again to a combination of subjective intuition and anecdote:

“When I hear the word “political,” I think of my work on the staff of the Senate Judiciary Committee. We staffers would sometimes play a kind of game, imagining that Senator Edward Kennedy, the committee chair, simultaneously received two calls, one from the secretary of the interior, another from the mayor of Worcester, Massachusetts. Which would he answer first? Most of us would bet on the mayor. Why? Because many of the senator’s constituents lived in Worcester. That, in a sense, is politics. Who elected you? Are you a Democrat or a Republican? Which position is more popular? Where are the votes?”

It’s hard to believe Breyer imagines the game of “Who will Senator Kennedy call back first?” reveals politics in its “elemental sense”. If that were all politics is, it  would be indisputable that politics so defined “is not present at the Court”. 

But “politics” isn’t a word that can be reduced to a mere element, like hydrogen, it’s a compound, like sodium carbonate. This is especially the case in a system like ours, with checks and balances and a division of authority between state and federal government. Even if one assumes that Justices aren’t sometimes partisan (and we will soon see Breyer struggle mightily to encourage us they are not), it seems to beggar belief that an institution that can say what government can and can’t do to further voting rights, free speech, and the definition of marriage is not (even in an elemental sense!) “political”.

Breyer tries to win by definition, but his definition of politics is, like so much else in the book, anecdotal and subjective.

Subjective, sometimes; political, never

Having attempted to win by dictionary, Breyer then rhetorically asks questions many readers have when they hear the claim that the Court does not make partisan decisions, “[W]hy.. are decisions of particular judges so predictable? Why are there ‘alignments’ of the same judges on the same side of various controversial cases?” According to Breyer these alignments are a result of “similar judicial philosophies.” 

But this point needs to be pressed: what judicial philosophies do Supreme Court Justices hold? Justices Amy Coney Barrett, Clarence Thomas, and Neil Gorsuch are self-professed “Originalists”, a judicial philosophy that holds the Constitution and its amendments should be interpreted as it was understood by the public at the time of their enactment. Originalists argue that this theory helps restrain judges from finding new rights in the Constitution that conveniently fit the judge’s personal preferences. As I have argued at length elsewhere, however, Originalism in practice winds up being an elaborate game of interpretive three card monte, where the card selected almost always favors conservative policy outcomes.

Furthemore, a conservative Constitutional scholar argues that while Justice Samuel Alito and Chief Justice John Roberts are not full throated Originalists, they frequently sign on to Originalist opinions and are in agreement with the other Originalist justices. And while there is a strong argument that Justice Brett Kavanaugh is not an Originalist, he also has no problem reaching “alignment” with the Court’s Originalists.

These six Justices have in their varying lengths of time on the Supreme Court converged with their philosophically different (but Republican nominated) colleagues on restricting campaign finance laws, limiting the scope of voting rights laws, allowing religious exemptions to COVID-19 health restrictions, constraining the contract negotiating power of public unions, and (just two weeks before Breyer’s book came out) permitting the enforcement of a Texas law that gives private individuals the ability to sue women for exercising their constitutional right to an abortion. 

In the last case, Chief Justice Roberts dissented on procedural grounds, but was silent on the merits. The majority decision of Justices Barrett, Thomas, Gorsuch, Kavanuagh, and Alito was also silent on the merits, but one could be excused for suspecting there is yet another philosophical “alignment” in the offing. On all the cases listed the presumably philosophically distinct (but Democrat nominated) Justices Elena Kagan, Sonia Sotomayor, and Stephen Breyer “aligned” in dissenting.

I ask the reader, keeping the above facts in mind, to answer the following questions in their head:

1. Which political party is more associated with supporting restrictions on campaign finance spending? Which political party is more associated with wanting to reduce such restrictions?
2. Which political party is more associated with expanding voting rights? Which party is more associated with restricting them?
3. Which political party is more associated with supporting robust COVID-19 health regulations? Which political party is more associated with opposing them?
4. Which political party is more associated with supporting public unions, such as teacher’s unions? Which political party is more associated with opposing them?
5. Which political party is more associated with protecting abortion rights by upholding Roe? Which political party is more associated with promising to appoint Supreme Court Justices who will overturn Roe?
6. What political party were the Presidents who nominated Breyer, Sotomayor, and Kagan to be Supreme Court Justices? What political party were the Presidents who nominated Barrett, Kavanaugh, Gorsuch, Alito, Roberts, and Thomas?
7. Were the answers to each of these questions the same answer? What impact does that “alignment” of answers have on how seriously you take Breyer’s assertion “Judicial philosophy is not a code word for politics” as applied to our current Supreme Court?

Some people will argue I have stacked the deck. They will point out the recent case where Justices Gorsuch and Roberts were part of a 6-3 majority that held LGBT workers were protected from workplace discrimination under the 1964 Civil Rights Act. They will note Justice Roberts refused to overturn the ACA individual mandate. 

I don’t deny there are exceptions to my general observations above. I also don’t deny that those unexpected outcomes are a result of more general judicial philosophies. In the LGBT workers rights case Justices Roberts’ and Gorsuch’s commitment to the judicial philosophy of textualism led them to apply the plain language of the text of the Civil Rights Act over the intent of the legislators in 1964 who never would have contemplated such an outcome. Chief Justice Roberts’ unexpected position on the ACA individual mandate came by upholding it as an exercise of Congress’ taxing power, which bolstered the Court’s institutional legitimacy without rolling back the Rehnquist Court’s constraints on Congress’ power under the Commerce Clause. But exceptions, being exceptional, prove rules—they don’t repeal them.

Breyer himself quietly concedes most of my points, stating “it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy, which, in turn, can shape the views of policy.” He notes that a judge could favor “federalism or free markets or government regulation of business” and that judge “might believe that the Constitution works well for this nation because it embodies one of those basic views.” 

Having effectively acknowledged that judges can read preferred political values into the Constitution, Breyer then wonders if it is even possible to draw a conclusion from that fact: “Are those views jurisprudential, or are they a form of political philosophy? Hard to say. To what extent do these political or jurisprudential views shape judges’ perspectives on policies at issue in particular cases? Yet harder to say.”

Most of the time it is not, in fact, that hard to say. You will get unexpected outcomes here and there, but under the Roberts Court on contentious cases involving the broad language of Constitutional rights, where there is a partisan split on the outcome, more often than not, you can look at the party of the President that appointed a Supreme Court Justice and make a fairly safe bet on where they will land. 

Justice Breyer, true believer

A week after the Supreme Court gave Texas the green light to let private citizens, rather than the state of Texas, impinge on abortion rights guaranteed by Roe, Justice Breyer began one of the the more unfortunately timed book tours in the history of publishing. 

During an interview with NPR’s Supreme Court correspondent Nina Totenberg, she asked about the divergence between current events and his thesis that judges are not partisan. Possibly channeling appellate litigators she observed while reporting on oral arguments before the Court, Totenberg laid fact on fact, before asking her question:

[J]ust last week, we saw the court…, by a 5-to-4 vote, refuse to block a Texas law on abortion even though it directly contradicts nearly a half-century’s worth of abortion precedence. And the decision came in the dead of night with virtually no explanation. Why shouldn’t these events lead people, the general populace, to believe that the court has been politicized already and that perhaps we should change the way justices are appointed – and for how long?

The video of the exchange is worth watching, especially for the way Breyer looks away from Totenberg briefly as she mentions the Court’s recent decision. In a sense, he has to look away. To look at the facts directly would require abandoning his dream of the Supreme Court as a council of non-political philosopher monarchs looking over our rights as benevolent caretakers. Throughout his book, he attempts to persuade us (and probably himself) to believe the dream via rose colored history, definitional fiat, and soft abstraction. 

With the dream before his eyes, all Breyer can say in response to Totenberberg’s question is that he thought the decision was “very, very, very wrong. I’ll add one more very. And I wrote a dissent, and that’s how it works.” That, of course, doesn’t answer the question about understandable scepticism from a portion of the public. Based on his book, I don’t think Breyer has a persuasive answer. All he has is the dream.

Over the past year there have been calls from liberal legal commentators for Justice Breyer to retire from the Supreme Court. He continues to resist the calls, leading the same commentators to accuse him of narcissism and selfishness. Many in the public agree. After reading his book, I have my doubts. I think what we are seeing is the stubbornness of a true believer.

Psychoanalyzing Supreme Court Justices is a sucker’s game, but a hard one to resist. All Supreme Court watchers have a pet theory about how the Justices think. Here’s the one I favor in this case: Justice Breyer isn’t retiring because to retire on grounds of political tactics would implicitly admit his entire model of how judges work is wrong. If he retires at a politically opportune moment, he’s admitting that the dream is dead. If he dies on the job, however, he won’t have to see the dream die. 

Maybe the theory is fanciful. I hope it is. After all, we’ll probably still be around after the funeral.

Featured Image is #protectthelaw, by LaDawna Howard