In an expansive two-hour lecture at Harvard Law School, Breyer lamented the common practice – by journalists, senators and others – of referring to judges from the presidents who appointed them and describing the nine by their conservative or liberal approach to the law.
“These are more than straw in the wind,” the 82-year-old Breyer said. “They reinforce the idea, which probably already exists in the reader’s mind, that Supreme Court judges are primarily political officials or ‘junior league’ politicians themselves rather than lawyers. Judges tend to think that differences between judges mostly do not reflect politics, but legal differences. That̵
“The public now expects presidents to accept court decisions, including those that are politically controversial,” he said. “The court has been able to impose significant control – a legal control – on the actions of the executive board in cases where the executive board strongly believes that it is right.”
He said that people “whose original instincts can favor important structural … changes, such as …” court packing “” should “think long and hard before incorporating these changes into the law.”
Proposals to expand the judiciary have been raised by liberal lawyers discredited by the Supreme Court’s long building conservatism and its relatively new 6-3 conservative-liberal composition, since last autumn’s death of Ruth Bader Ginsburg and former President Donald Trump’s election of Amy Coney Barrett to succeed her.
Breyer is one of the three liberals, yet he stressed on Tuesday that he believes his disagreements with colleagues are legal, rather than based on ideology or politics.
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 earlier, there was no such nice political and ideological symmetry.
Republican nominees, such as Justice John Paul Stevens, a 1975 election of President Gerald Ford, ended up voting with the Liberal wing on the bench. Stevens, who retired in 2010, was the last of his kind in this modern era, as presidents carefully screened for ideology and justice rarely break expectations.
He also lamented the state of today’s Senate screening of legal candidates.
“The Senate confirmation process has changed over the last two or three decades and has become more biased with senators far more divided by party lines,” he said. “Senators will often describe a candidate they are opposed to as ‘liberal’ or ‘conservative’. What they say, reported by the press to their constituents, reinforces the view that politics, not legal benefits, governs Supreme Court decisions. ”
Rumors of retirement
Breyer’s speech delivered as he faced a Crimson background from Harvard Law and carried Zoom over reflected his own broad reading of constitutional guarantees as well as his ambitions and fears for today’s judiciary.
Breyer has written some of the most powerful opinions trying to preserve landmarks on abortion rights and school segregation. Unlike his right-wing colleagues, he has also endorsed the government’s broad legislative power to protect workers, consumers and the environment.
A former law professor who never lost his academic air, Breyer dedicated most of his speech to the roots of the Supreme Court’s power before diving into some of his current concerns. “It’s a long lecture,” he warned at the start of the event, noting that he would take a break midway.
He weaved references to his Capitol Hill service for the late Massachusetts Democratic Senator Ted Kennedy in the 1970s and ended with references to Albert Camus’ “The Plague,” a favorite of Breyer even before the country was seized by the coronavirus pandemic.
Since President Joe Biden’s inauguration in January, Breyer, who was named to the bench in 1994 by Democratic President Bill Clinton, has seen regular news comments from other Democrats urging him to retire, while Biden has a Democratic majority in the Senate if only by the current margin of one vote.
Breyer has refused to talk about his retirement prospects and on Tuesday avoided the topic altogether.
If Breyer, the oldest of the nine, announces his retirement in the coming months, he would give Biden the opportunity to appoint the country’s first black female justice that Biden has promised. It would probably not change the ideological composition of the bench, but it would improve its diversity and relative youthfulness.
Deviations are a ‘failure’
Tuesday’s Harvard lecture was part of an annual event in honor of the late Justice Antonin Scalia. Breyer advocates a legal approach that expands the constitution expansively, the opposite of Scalia’s method, known as originalism, tied to the 18th century understanding of constitutional guarantees.
Still, Breyer and Scalia, who died in 2016, were friends and in Tuesday’s lecture, Breyer joked about their performance at law school.
In his nearly 27 years of service at the Supreme Court, Breyer has tried to bridge ties with the Conservatives, saying he detests dissent and considers them a “failure”.
Some of Breyer’s most convincing opinions, it should be noted, are written in disagreement. In 2007, for example, he protested against a statement by Chief Justice John Roberts rejecting the school’s integration plans in Seattle and Louisville. Roberts said districts could not consider a student’s race when performing school assignments to reduce racial isolation throughout the school district.
“This is a decision that the Court and the nation will regret,” wrote Breyer, whose father, Irving Breyer, was a longtime school member in San Francisco. Breyer still wears the wristwatch his father received when he retired from the district. Breyer said Robert’s view threatened the “promise of” the 1954 Brown v. Board of Education decision.
Breyer said Tuesday that differences with his colleagues were based on their different views on the structure of the constitution or how they interpreted the statutes. He did not refer to cases where his colleagues themselves have publicly questioned each other’s motives.
Breyer allowed that sometimes judges weigh public opinion or the future consequences of a decision. And he recognized that the nine are products of their individual backgrounds and experiences.
Yet he said, “philosophy of law is not a watchword for ‘politics’.”