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Stephen Breyer’s Supreme Delusions

His new book refuses to recognize that the court is political.

In Plato’s Republic, Socrates broaches the disturbing possibility that it may be necessary to lie to the people for their own good. The “opportune falsehood,” Socrates explains to his pupil, is that everyone’s soul has either gold, silver, or brass in it, and it is because of this admixture that the city’s inhabitants are assigned to their different ranks and responsibilities. You can see the reasoning: If you think that most people will not be able to understand the real justification for the social order, but that they need to accept that order, then your best course is to fool them into complying with it. Best to “deceive the rulers, if that be possible,” Socrates says, “and at any rate the rest of the city.”

The Authority of the Court and the Peril of Politics
by Stephen Breyer
Harvard University Press, 112 pp., $19.95

Known as the theory of the “noble lie,” this passage is surprisingly relevant to the United States Supreme Court. Fewer and fewer people are buying our own national myth that the court dispenses law and justice without crossing the line into partisanship and politics. For some, this development only makes it the more necessary to hoodwink the people into believing that the Supreme Court soars above politics; this particular noble lie is essential precisely because, having worked so well for so long, it is now under threat. One of the leading proponents of this view sits on the Supreme Court himself—and is refusing to leave.

Stephen Breyer, who turned 83 this year, was born in San Francisco, went to Stanford and Harvard Law School, and taught law for a while. He was, he noted a few years ago, the first Harvard Law professor to have to earn tenure by writing a scholarly article—which he did, on the subject of copyright, before establishing a profile as an administrative law specialist with a technocratic bent and then passing into the judiciary. Appointed to the First Circuit Court of Appeals by Jimmy Carter in 1980, Breyer ascended to the Supreme Court on the nomination of Bill Clinton in 1994—more than 27 years ago.

In April, Breyer delivered a much remarked upon address at Harvard Law School in honor of his late colleague Antonin Scalia, which has now appeared as The Authority of the Court and the Peril of Politics. Most of the short pamphlet warns against seeing the court as “political.” The court acts as a “check” against the other branches, Breyer teaches us, holding the president and Congress within constitutional and other legal constraints. Enjoying neither the power of the purse nor the sword, however, the court’s authority “depends on trust, a trust that the Court is guided by legal principle, not politics.”

Breyer’s book comes at a pivotal moment. After the tempests that the death of Justices Scalia and Ruth Bader Ginsburg and the retirement of Justice Anthony Kennedy unleashed—all of them replaced by Donald Trump’s nominees—liberals are increasingly treating the Supreme Court less as an empyrean summit of justice above politics than as the highest political prize in our “democracy.” With a conservative majority continuing to dismantle voting rights through decisions like Brnovich v. Democratic National Committee and positioned to do harm on issues such as abortion rights and gun control in the coming term, liberals finally regard the Supreme Court as a problem that has to be dealt with. Meanwhile, Breyer’s own decision not to step down from the court when Democrats are in a position to replace him—to do so would seem “political,” he worries—has been met by apoplectic responses from commentators and the public more generally. And though the Supreme Court’s professional chroniclers have responded with their familiar reminder that the court’s decisions could have been even more painful, polls nonetheless indicate that trust in the institution is plummeting, and calls to add liberal justices or strip the court of its authority continue to gain mainstream appeal.

Why, then, is it “wrong,” in Breyer’s view, “to think of the Court as a political institution”? Most of the court’s work consists of interpreting legal texts. And although the justices often disagree about how best to interpret those texts, “normally those disagreements reflect differences in methods of interpretation that are not political in nature.” The word “political,” Breyer explains, calls to mind questions like, “Are you a Democrat or a Republican?” or, “Which position is more popular?” Such crude partisan reasoning has no role to play for judges, Breyer insists, for whom “jurisprudential views” and not “outcome[s]” dictate results.

But what about more abstract “ideology”? Might one’s identity as a “free enterpriser” or a “Marxist” have some role to play? Here the question is “tougher,” Breyer concedes, since “we all have our predispositions.” If, however, he finds himself inclined toward some decision based on “general ideological commitment,” he recognizes he has “gone down the wrong path” and tries to “correct course.” So, too, he assures us, do his colleagues, all of whom “studiously try to avoid deciding cases on the basis of ideology rather than law.” The confusion of “personal ideology” and “judicial philosophy,” Breyer continues, is what leads politicians to care so much about judicial appointments. But while advocacy groups may “favor a particular appointment,” a judge once appointed and owing no political favors “naturally decides a case in the way that he or she believes the law demands.”

Breyer promises that his defense of the Supreme Court does not depend on the most naïve kind of separation of law and politics. “To suggest a total and clean divorce between the Court and politics,” he admits, “is not quite right.” Many of the cases are “difficult,” with “considerable merit on both sides.” In these situations, a majority of justices—frequently in ideological groupings—decides which way the country goes. In addition, Breyer writes, the court is often asked to construe “highly general” language like “liberty” or “freedom of speech,” words that, Breyer confesses, “do not dictate their own content.” Owing to this indeterminacy, a “judge’s background, experience, and personal views” about the law’s purposes, the role of the court, or even “the nation’s life” inevitably “make a difference” in how he or she votes.

Most remarkably, Breyer allows that the differences in “jurisprudential views” upon which he places so much weight are “difficult to separate” from disagreements of “political philosophy.” American constitutional law has been riven for decades by debates about how properly to interpret law. You cannot say what the Constitution requires, it seems, without a theory for determining what it means. If a justice votes to invalidate a regulation because our Constitution prioritizes “free markets,” for example, does that vote reflect a neutral theory of interpretation, or an ideological creed that ought to be open to political reexamination? “Hard to say,” Breyer shrugs.

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.

While Breyer admits to this “complicated” reality, his story of why the court is deserving of authority is far from compelling, seemingly by his own lights. For this reason, Breyer is left to emphasize much more strongly the practical harm that would result were the public to lose faith in this once and to some degree still hallowed institution.

In his lecture, Breyer was even clearer than in the book about suggesting that we should protect the authority of the Supreme Court because of the horrendous consequences that would follow should the public break faith. Astoundingly, Breyer implied that the sole alternative to shoring up the institutional legitimacy of the Supreme Court as it stands is mere despotism, exemplified by “other countries.” “Turn on the television,” he counseled—twice. If judicial power just as it exists in America now is abandoned, the worst ensues. Identifying a very particular American institution with the “rule of law,” Breyer similarly remarked in a New York Times interview in late August that “tyranny, autocracy, irrationality” are the only alternatives. But Breyer’s belief that reform will bring lawlessness and oppression seems entirely melodramatic, given that no court in any other country enjoys the kind of policymaking authority our Supreme Court does—and those democracies often function better.

Though no other judge has been as outspoken as Breyer so far, such catastrophizing is growing among defenders of the judicial status quo. In his testimony before the Presidential Commission on the Supreme Court of the United States in June, another Harvard professor, Noah Feldman, argued that the court has become an “integral, irreplaceable part of our constitutional system,” uniquely capable of protecting “the rule of law” and “fundamental rights.” While even more candid than Breyer in acknowledging the political character of Supreme Court decisions, Feldman warned that reform proposals like court packing or jurisdiction stripping would “break the institutional legitimacy of the Court,” merely by treating it openly as an object of political control. Feldman has read his Plato, too. Often as the justices may assert their “political preferences,” Feldman reasoned, neither Congress nor the president is “capable” or “motivated” to prevent a descent into lawlessness and minority abuse. As such, the court’s reputation as doing something other than politics must be preserved, or the heavens will fall.

Breyer and Feldman are right, of course, that enough institutional legitimacy is required for all otherwise justifiable institutions to function and survive. But such legitimacy is never itself the justification of an institution. In a democracy, the value by which to judge institutions—to safeguard if they serve it and reform them if not—is whether they advance or incarnate our collective self-rule. Breyer sidesteps this criterion entirely, as if the whole problem were saving the appearance that the Supreme Court is apolitical, managing a situation where his institution has accreted too much power to be regarded, in so many instances, as following legal rules rather than making political choices.

Fortunately, it is hardly clear that the American people actually do accept the desirability—especially when alternatives are left out of account—of conferring immense political authority on unelected officials. And one thing is for sure: Whether Americans ever believed otherwise, the extraordinary political mobilization and organization to achieve partisan control over the Supreme Court in our lifetimes—especially when it comes to appointments to our highest court—prove that Americans know the institution is political. No one is fooled any longer, if they ever were.

More important, whatever the evidence shows, public acceptance of the Supreme Court’s current role is no defense of it when it conflicts with our deepest political ideals, in our case democratic ones. No more than acceptance of subordination is an argument in favor of patriarchy or slavery can shunting political choice away from openly political forums comport with our ideal of collective self-government (let alone be required by it).

Deliberately or not, Breyer defends Supreme Court power as a noble lie. It is critical to preserve its appearance as standing above politics. Yet while his official project and his title promise to redeem law from “politics,” Breyer proves unable to define the line between them. Nor does he offer any reason to think that shattering the myth would make things worse, instead of better. The real message of Breyer’s book seems merely to be that open recognition that law is political—subject to contestation and choice, and therefore best decided by democratic rather than judicial authority—would be dangerous or even fatal. It only is, however, to the court’s existing power.