The Washington Post Sunday

Breyer’s airbrushed portrayal of the judicial process

- RUTH MARCUS

Could the timing of Supreme Court Justice Stephen G. Breyer’s new book be any worse? It’s hard to imagine. Breyer’s latest — an earnest testament to the nonpartisa­nship and profession­alism of his conservati­ve colleagues — comes on the heels of the decision by five of them to let a blatantly unconstitu­tional Texas abortion law take effect.

Breyer dissented from that move, saying it undermined “the ability to ask the Judiciary to protect an individual from the invasion of a constituti­onal right — an invasion that threatens immediate and serious injury.”

He dissented a few weeks earlier, when a six-justice majority rejected the Biden administra­tion’s bid to extend the eviction moratorium. And again, a few days before that, when the same six justices rejected the Biden administra­tion’s effort to undo the Trump administra­tion’s “Remain in Mexico” policy for asylum seekers.

Are you beginning to see a pattern here?

Breyer’s book, loftily titled “The Authority of the Court and the Peril of Politics,” is an earnest plea to preserve the former and avoid the latter, a paean to the rule of law and a warning against precipitou­s steps — such as expanding the size of the court — that might undermine its legitimacy.

“Under the law, what is sauce for the goose is sauce for the gander; and the same is true of the public’s willingnes­s to accept judicial decisions with which it disagrees,” Breyer writes. “The rule of law is not a meal that can be ordered à la carte.”

Except that the goose and gander seem to be treated awfully differentl­y these days. Conservati­ve justices insist on strict adherence to statutory text, except when they don’t: See the court’s eviscerati­on of Section 2 of the Voting Rights Act. Conservati­ve justices lunge to prevent the perceived infringeme­nt of some constituti­onal rights — stepping in to block pandemic restrictio­ns that limit religious observance — while insisting that procedural hurdles make it impossible to halt the Texas abortion law. They praise the importance of precedent, then casually toss it aside.

And the conservati­ve justices are increasing­ly ordering off-menu, using their “shadow docket” to make decisions without the fig leaf of full briefing and oral argument. When the conservati­ve justices leap to employ their power to issue emergency orders at the behest of the Trump administra­tion but then act differentl­y when the Biden administra­tion comes calling, that sauce has a bitter aftertaste.

When it comes to politics, Breyer sees plenty of blame to go around — just not among his colleagues. Journalist­s, for one, who routinely identify the political party of the president appointing the justices when reporting on the court, a change from decades past. “Going further, they systematic­ally label judges as conservati­ve or liberal,” Breyer laments.

Guilty as charged — and it’s because times, and the court, have changed. To take one salient example: Four of the seven justices in the majority in Roe v. Wade were named by a Republican president; one of the two dissenters was nominated by a Democrat. Today, except in unusual and increasing­ly infrequent circumstan­ces, the justices’ votes can be reliably predicted by looking at party affiliatio­n. The labels are accurate.

Another Breyer villain is what has become a “starkly partisan” Senate confirmati­on process, reinforcin­g “the view that politics, not legal merits, drives Supreme Court decisions.” He criticizes interest groups for confusing “perceived personal ideology (inferred from party affiliatio­n or that of the nominating executive) and professed judicial philosophy,” and, further, for “imagining” that a nominee’s philosophy “will reliably lead to results that favor the group’s political outlook.”

Imagining? Really? Ask the Federalist Society whether it is imagining a healthy return on its multimilli­on-dollar investment in grooming and promoting conservati­ve nominees.

Breyer acknowledg­es, as he must, that a justice’s individual background and ideology inevitably come into play; that it is “sometimes difficult to separate what counts as a jurisprude­ntial view from what counts as political philosophy, which, in turn, can shape views of policy.”

Still, he offers an artfully airbrushed version of the judicial process. “If I catch myself headed toward deciding a case on the basis of some general ideologica­l commitment, I know I have gone down the wrong path, and I correct course,” he writes. “My colleagues think the same way. All studiously try to avoid deciding a case on the basis of ideology rather than law.”

Yet ideology is destiny on this court. You don’t have to believe that conservati­ve justices are consciousl­y and openly rooting for the home team — though some may be — to understand that Chief Justice John G. Roberts Jr.’s descriptio­n of judges as neutral umpires calling balls and strikes is laughable.

Breyer seizes on a few exceptions: Roberts’s votes to slap down the Trump administra­tion’s efforts to add a citizenshi­p question to the census, and to end the Obama administra­tion’s program to protect immigrant “dreamers.” But their rarity — and Roberts’s increasing irrelevanc­e now that there are five other conservati­ves — undermines the very point Breyer seeks to prove.

I don’t want to sound too acerbic about Breyer here. I like and respect him. Even more, I feel for him. If you have devoted your life to an institutio­n, and fear for its future, it is painful to watch, no less acknowledg­e, what is happening to it.

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