Stephen Breyer’s Supreme Delusions

Breyer is clearest about one point of overriding importance: that it would be dreadful to abandon the line between politics and law, wherever that line is—and that those calling for political reform of a political institution are dangerous. The “highly nuanced” reality of judicial politicking, the justice writes, is at odds with the impression of “politicians in robes” that the public has lately received, both from less credulous journalists and political reformers. That impression, Breyer continues, is a source of enormous danger, insofar as it predictably undermines both “confidence in the courts, and in the rule of law itself.” In short, although it is not entirely clear why constitutional judgments should be seen as apolitical, it is essential that the people think that they are. Evidently, Breyer has read his Plato.

In the last part of his book, Breyer closes by highlighting measures that, in his view, might halt a current “attrition of confidence.” Among them are familiar calls for public education, teaching the children “what the rule of law is” and how, since “the time of King John,” it has offered protection against government tyranny. (He says less about how much “tyranny” the law has always protected and still does.) Breyer also implores his colleagues to exercise their authority with appropriate modesty. They should never “seek or expect popularity,” and should exhibit such virtues as “clarity” and “compromise.” Finally, Breyer urges his fellow justices to adhere to a philosophy of judicial “minimalism,” articulated “carefully” by Harvard legal scholar Cass Sunstein (thanked in the book’s acknowledgments). Among other things, this minimalist approach to judging entails deciding cases on “narrower” grounds (statutory as opposed to constitutional, for example) and, Breyer suggests, sometimes having to “swallow” dissenting views to create the impression of greater judicial unanimity.

Most important, Breyer concludes, we must not succumb to calls for “structural” reform to the court. Breyer warns specifically against the “temptation” of court packing. Adding justices to the court would, Breyer concedes, provide a “short-term” political victory. The damage to the institution would, however, be “grave,” suggesting to the public that the court’s decisions were guided less by “legal principle” than by “politics.” Beyond adding justices, calls for elected officials to exert control over the court’s composition or authority can only “feed” the perception of “political influence” among the justices, “further eroding the public’s trust,” a trust “without which our system cannot function.”

Surprisingly for his official agenda, then, Breyer comes exceedingly close to confessing that the Supreme Court is actually a political institution. While much of the book is devoted to contrasting the subtle reality of judicial decision-making with the crude portrayal that increasingly dominates popular discourse, the subtleties to which Breyer draws our attention are mostly sophistry—as Breyer more or less concedes. As the nine justices preside over cases in which indeterminacy reigns and “jurisprudential” commitments indistinguishable from ideological ones fill in the gaps, their voting substitutes in an alarming number of situations for the authority of the people to vote on politicians who, in turn, vote on legislation.

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