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.