Revisiting Justice Stephen Breyer’s Curious (and Strangely Timed) Defense of the Court

Justice of the Supreme Court publishes a book defending the court as an unwavering dedication to its guiding principles, and in less than a year, signs an objection that clearly shows how this court betrays its guiding principles. Things can be undeniably ironic.

But then, Judge Stephen G. Breyer, the author of the terrible timing. “Court authority and political danger” The one published last September is an unintended ironic font.Last week, a conservative majority of the Supreme Court Communicated that decision The Dobbs v. Jackson Women’s Health Organization virtually overturned the Roe v. Wade case, revoked constitutional rights nearly 50 years ago, nine months after Breyer’s dissertation was born, exactly 40 weeks and three days. ..

In the author’s memo, Breyer states that the book began as a statement in a 2021 Scalia lecture at Harvard Law School. What he neglects to say is that the conservative Judge Antonin Scalia was known for the very existence itself, a kind of ideological reasoning that Breyer was eagerly trying to deny. “If I find myself heading towards deciding a case based on some general ideological commitment, I know I’ve gone the wrong way, and I’ll fix the course. “Brayer writes. “My colleague thinks the same way.”

Grumpy Scalia was also known as a stylist, but Breyer obviously isn’t. The lines in Breyer’s book are merciless and bland, so I began to wonder if the often forgotten prose was intentional. “The authority of the court” can be read as if it were — the unfriendly controversy built by the exemplary technocrats is willing to uphold the integrity of his intentions. The book takes an extra layer of unreality, as if Breyer brought power points to the Knife Battle in the light of the Supreme Court’s recent bombing decision to overturn the precedent for the right to abortion and New York’s hidden carry-on gun law. increase.

Some of the “authority of the court” seems to be taken from his previous book, “Making Our Democracy Work,” published in 2010. The book explains that respect for the rule of law is a struggle and should not be done. It is taken for granted. If you’re not sure, it doesn’t make sense from Breyer’s new book, which has changed a lot over the last decade.

Donald J. Trump, in a passage on the Bush v. Gore case, mentions only once the 5-4 decision that effectively passed the 2000 election to George W. Bush. Some observers have pointed out the Bush v. Gore case as an important event of the Supreme Court’s eroded legitimacy. Looking back on such criticisms, Breyer proudly stated that “the court refused to hear or decide on the cases arising from the 2020 elections between Donald Trump and Joe Biden.” It’s basically the same thing.

Mr. Breyer noted the fact that the Supreme Court may rule in favor of conservative plaintiffs or in favor of liberal plaintiffs. “These contradictions make the court a political system. I’m convinced that it’s wrong to think. ” Illustrate his reasoning. He writes that the Supreme Court must not be political. It’s not a political creature. All of these discrepancies result from “jurisprudent differences.”

Yes, judges may have their own “views” and the nomination process may have a political side, but Breyer argues that it doesn’t really matter. The judicial oath keeps that in mind very much. The judge’s loyalty is to the rule of law, not the party that helped secure his or her appointment. OK, Breyer, by the way.

The book specifically sheds light on current details and supports providing “general suggestions” about the importance of compromise and the need to “listen to others”. It addresses the annoying question of “whether the decision is right or wrong.” After approving how Americans have become accustomed to accepting decisions that may even be violently opposed, Breyer identifies “at least two threats that cause concern”: growing distrust of government agencies. How journalists report in court. “So what can we do to stop the loss of self-confidence?” What is interesting about Breyer’s claim is his claim that the problem lies outside the Supreme Court itself. The problem is that it is one of the observer’s “confidence”, not the agency’s own contribution to the legitimacy crisis.

“Court authority” is so weakly supported that Breyer, who announced in January that he would retire after the end of his term, is the last to gently show how vulnerable this book is to his fellow judges. I wondered if I thought of it as an attempt at. Confidence in the court was growing. Perhaps by proclaiming the integrity of the system and confidence in the judicial oath and carefully avoiding obvious conflicts, he “dangers politics” to them without sounding an unsightly warning by a sitting judge. I believed it might make me aware.

It is the only way such a WAN book by such a wise legal scholar makes sense. It also explains a strange passage near the end, where he quotes Albert Camus’s “plague” and compares it to … what? The novel was a parable of Camu against resistance to fascism. Breyer doesn’t come out right away, so he doesn’t say anything so enthusiastic, but he says, “The rule of law is not the only weapon in the ongoing fight against Yersinia pestis, but it’s important. It ’s a weapon, ”says mysteriously.

You need to wonder what Judge Clarence Thomas thinks about such a subtweet, who refused to hear about the elections his wife tried to overturn. That is, if he had time to read Breyer’s book. After all, the Supreme Court has been busy with Thomas comfortably imprisoned by a conservative majority.

When I was reading Breyer’s book in the summer of 2022, Profile In it, writer Jeffrey Toobin visits Breyer in New Hampshire, where Justice has a log hut, and explains how the two men went out to a nearby pond in an old canoe.

“When we got home, the blade of Breyer’s paddle broke and sank,” writes Tubin. “It didn’t look upset,” Breyer said. “In fact, he was barely aware of the collapse of his equipment.” Fortunately, they didn’t go too far. Instead of climbing a stream, they were still near the coast.