Breyer Warns Against Remaking The Court: 'What Goes Around Comes Around'

Sep 10, 2021
Originally published on September 13, 2021 4:32 am

U.S. Supreme Court Justice Stephen Breyer has a warning to those who want to remake the court: Be careful what you wish for.

In his new book, The Authority of the Court and the Peril of Politics, Breyer argues that over time, public acceptance of Supreme Court opinions, even those you may disagree with, has become a habit — a hard-won habit that has fortified the rule of law as an essential part of U.S. democracy.

And he points to what former Senate Democratic leader Harry Reid said about Bush v. Gore when the Supreme Court effectively ruled that George W. Bush had won the presidential election.

"He said the most remarkable thing about this case is, even though probably half the country didn't like it at all, and it was totally wrong, in his opinion and in mine, people followed it, and they didn't throw brickbats at each other and they didn't have riots," he told NPR legal affairs correspondent Nina Totenberg.

But Reid's observation in 2000 did not match the reality of the 2020 election: Then-President Donald Trump thumbed his nose at the court and Congress, leading to the storming of the U.S. Capitol on Jan. 6. That has led many liberals to call for a radical change in American institutions, including the Supreme Court.

Breyer's view: "What goes around comes around. And if the Democrats can do it, the Republicans can do it."

Separately, Breyer told Totenberg he welcomed the resumption of oral arguments at the court, saying it fosters "human interaction."

"I think it's better to be there where you can actually see the lawyer and see your colleagues, and you get more of a human interaction," he said.

That said, Breyer said there were some advantages to the remote arguments during the pandemic because each justice asked questions in turn for just a few minutes — instead of the usual oral argument free-for-all. Breyer said that the justices and lawyers had to be more focused in their questions and answers.

"It stops me from rambling on, and that's a very good idea," he said. "And the other very good thing is Clarence Thomas asked questions each time."

Thomas, the most senior member of the court, has gone as many as 10 years without asking a question, and Breyer said it was very useful hearing his questions during the remote arguments. But Breyer conceded the COVID-19 lockdown did affect the court "negatively."

"We're not automatons. We're human beings," he said. "And I believe when human beings discuss things face to face ... there's a better chance of working things out. That's true with the lawyers in oral arguments, and it's true with the nine of us when we're talking."

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Supreme Court Justice Stephen Breyer is a frequent dissenter in the face of a new conservative supermajority on the court. But he is also not happy with a lot of proposals from liberals aimed at offsetting President Trump's appointment of three justices. He has written a book, just a hundred pages long. It's about how the court does its job and why he thinks it's dangerous to mess with the system.

NPR legal affairs correspondent Nina Totenberg sat down with Breyer to talk about all of this earlier this week.

NINA TOTENBERG, BYLINE: Breyer's book comes out at an uncomfortable time. Just last week, the court, by a 5 to 4 majority, refused to block a Texas abortion law, even though it directly contradicts nearly a half century's worth of abortion precedents. Three of the five justices in the conservative majority were appointed by Trump - the other two by President George W. Bush. Of the court's conservatives, only Chief Justice John Roberts, also a Bush appointee, dissented. Calling the law unprecedented, Roberts would have preserved the status quo to allow the lower courts to examine it.

The Texas statute is indeed extraordinary. It bans abortion after roughly six weeks. That's before most women even know they're pregnant or 16 to 18 weeks before a fetus is viable - able to live outside the womb - the standard set in Roe vs. Wade. What's more, the law is to be enforced by the general populace at large instead of state officials. So why, I asked Breyer, shouldn't these events lead people to believe that the court has already been politicized and that it's not deserving of the respect he talks about in his book?

STEPHEN BREYER: I thought the last decision you mentioned was very, very, very wrong. I'll add one more very. And I wrote a dissent. And that's the way it works.

TOTENBERG: You are always posing hypotheticals to counsel. So let me put this hypothetical to you. What do you suppose the court's conservatives would do if New York passed a strict law banning guns that was to be enforced not by state officials but by the general populace, the same mechanism used to enforce the Texas abortion law? What do you - you think they'd do the same thing?

BREYER: That really isn't a hypothetical (laughter). What you've done is try to work out a - and in dissent, we pointed out things like that. It's wrong, I think. And we'll see. But it's a procedural matter. And so we'll see what happens in that area when we get a substantive matter in front of us.

TOTENBERG: When Breyer talks about a procedural matter, he's referring to something known as the shadow docket, namely actions taken on an emergency basis, usually to preserve the status quo, so that they can be heard and decided first by the lower courts or fully heard and considered by the Supreme Court. In this case, as in others, when an emergency appeal is brought, there was no full briefing, no oral argument and no detailed opinion. Indeed, no court had yet to hold a full hearing on the statute. Breyer and the other dissenters said the court should have waited until the Supreme Court at some later date was asked to hear the case with full briefing and arguments.

But now abortion will become a rarity in Texas. Other states will pass copycat laws. And in November, the justices are scheduled to hear a direct challenge to Roe vs. Wade. In his book, Breyer argues that over time, public acceptance of Supreme Court opinions, even those you may disagree with, has become a habit - a hard-won habit - that has fortified the rule of law as an essential part of our democracy. And he points to what Democratic leader Harry Reid said about Bush vs. Gore, when the Supreme Court effectively ruled that Bush had won the presidential election in 2000.

BREYER: And probably half the country didn't like it at all. And it was totally wrong in his opinion and in mine. All right? People followed it. And they didn't throw brickbats at each other. And they didn't shoot each other. And they didn't have riots.

TOTENBERG: So the trouble with what Harry Reid said back in 2000 is that that's not what really happened in the 2020 election and that your book, your critics say, blinkers reality. In 2020, President Trump thumbed his nose at the court and at Congress. And you know what happened after that - the storming of the Capitol. The question really is, what evidence is there that, in the world we live in today, people actually have that kind of faith in institutions at the moment?

BREYER: Ah - maybe not, maybe not - but I say in here, too, what goes around comes around. And if the Democrats can do it, the Republicans can do it.

TOTENBERG: Breyer still believes that while he has profound differences with some other members of the court, theirs is an honest difference based not on partisan politics but judicial philosophy and some personal values.

BREYER: Yes, values differ. And in tough, close cases, that can show up. Let's call that the nature of human beings living together in a community that's run by a rule of law.

TOTENBERG: Breyer, of course, has been under intense pressure this year from liberal Democrats calling on him to retire. And many were infuriated when he did not step down. In our interview, he would not commit to what he'll do in the next six months or more. All he would say about retirement was this.

BREYER: I do not believe I should stay on the Supreme Court or want to stay on the Supreme Court until I die. And when exactly I should retire or will retire has many complex parts to it.

TOTENBERG: What are the factors?

BREYER: Oh, there are quite a few. And I'm not going beyond what I said for (laughter) the simple reason that I would like this interview to be about my book.

TOTENBERG: (Laughter).

That is Breyer's puckish humor at its best. But if his plans on retirement remain obscure, the realities of the court's docket in the coming term are not. Abortion, guns and possibly affirmative action - they're all on the docket. And as Breyer made clear in our interview, his 27 years on the high court have taught him an important lesson. It takes years, somewhere between two and five years, for a new justice to really settle in and absorb the mores of the institution.

BREYER: People have to become acclimatized to that institution and work out who they are going to be as judges. It takes a while.

TOTENBERG: The implication not said is that with a docket so inflammatory this term, no new Biden-appointed justice could do as well as he could to prevent or soften what liberals would call a wholesale slaughter of Supreme Court precedents. Justice Breyer's book is titled "The Authority Of The Court And The Peril Of Politics."

Nina Totenberg, NPR News, Washington.

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