The Washington Post Sunday

Breyer’s airbrushed portrayal of the judicial process


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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