In an extensive two-hour lecture at Harvard Law School, Breyer lamented the general practice – by journalists, senators and others – of referring to judges of the presidents they appointed and of describing the nine by their conservatives or liberals approach to the law.
“It’s more than straws in the wind,” the 82-year-old Breyer said. “They reinforce the idea, probably already in the mind of the reader, that judges of the Supreme Court are primarily political officials or ‘junior league’ politicians rather than jurists. Judges tend to believe that differences between judges are mostly not political. “but reflects legal differences. That’s not what the public thinks.”
“The public now expects presidents to make court decisions, including those that are politically controversial,” he said. “The court is able to draw up a significant check – a legal check – on the actions of the executive in cases where the executive strongly believes it is right.”
He said people “whose initial instincts could favor important structural … changes, such as … ‘court packaging’, ‘should think long and hard before embodying the legislative changes.’
Proposals for court expansion have been raised by liberal advocates discouraged by the Supreme Court’s long build-up conservatism and the relatively new 6-3 Conservative-Liberal composition since the death of Ruth Bader Ginsburg and former President Donald Trump’s choice from Amy Coney Barrett to succeed her last year.
Breyer is one of three liberals, but he stressed Tuesday that he believes his differences with colleagues are legal, rather than based on ideology or politics.
The six Conservatives of the court were appointed by Republican presidents, and the three Liberals by Democratic presidents. Breyer said in his speech that such political references decades ago would not be part of the news coverage. But decades before, there was no such neat political and ideological symmetry.
Republican appointments, such as Judge John Paul Stevens, an election of President Gerald Ford in 1975, eventually voted with the liberal wing of the bench. Stevens, who retired in 2010, was the last of his kind in this modern era, when presidents looked carefully at ideology and judges rarely broke expectations.
He also lamented the state of play of the current senate screening of judicial candidates.
“The Senate confirmation process has changed over the past two or three decades and has become more biased with senators being much more divided along party lines,” he said. Senators will often describe a nominee they oppose as ‘liberal’ or ‘conservative’. What they say, reported by the press to their constituents, reinforces the view that politics, not legal merit, drives the rulings of the Supreme Court. ‘
Retirement rumors
Breyer’s speech, delivered while standing against a crimson background of Harvard Law and conveying Zoom, reflects his own broad reading of constitutional guarantees, as well as his aspirations and fears for the judiciary today.
Breyer has written some of the most powerful opinions to preserve landmarks on abortion rights and school disruption. Unlike his right-wing colleagues, he also endorsed the broad regulatory power of the government to protect workers, consumers and the environment.
A former law professor who has never lost his academic air, Breyer devoted most of his speech to the Supreme Court’s power roots before going into his current concerns. “It’s a long lecture,” he warned at the start of the event, noting that he would take a breather halfway.
He referred to his service in Capitol Hill in the 1970s to the late Democratic senator from Massachusetts in the 1970s and concluded with references to ‘The Plague’ by Albert Camus, a favorite of Breyer even before the coronavirus pandemic occupied the country. .
Since President Joe Biden’s inauguration in January, Breyer, who was appointed to the bench in 1994 by Democratic President Bill Clinton, has seen regular news commentary by fellow Democrats urging him to retire while Biden has a Democratic majority in the Senate. even if only by the current margin of one vote.
Breyer did not want to talk about his retirement prospects and avoided the topic Tuesday completely.
If Breyer, the eldest of the nine, does announce his retirement in the coming months, he would give Biden the opportunity to appoint the country’s first black women’s judge, as Biden promised. It is unlikely to change the ideological composition of the bank, but it will improve its diversity and relative youth.
Deviations are a ‘failure’
Tuesday’s Harvard lecture was part of an annual event in honor of late Judge Antonin Scalia. Breyer advocates a judicial approach that broadly interprets the Constitution, the opposite of Scalia’s method known as originalism, which is linked to the 18th century understanding of constitutional guarantees.
Still, Breyer and Scalia, who died in 2016, were friends and in Tuesday’s lecture, Breyer joked about their appearance on the law school track.
In his nearly 27 years of service to the Supreme Court, Breyer tried to bridge relations with conservatives, saying he hated deviations and viewed them as a ‘failure’.
It should be noted that some of Breyer’s most convincing opinions were written in dissent. In 2007, for example, he objected to an opinion by Chief Justice John Roberts rejecting school integration plans in Seattle and Louisville. Roberts said districts cannot consider a student’s race when doing school assignments to reduce racial isolation throughout the school district.
“This is a decision that the court and the nation will regret,” wrote Breyer, whose father, Irving Breyer, was a longtime San Francisco school board member. Breyer still wears the wristwatch his father received upon his retirement from the district. Breyer said that the Roberts opinion ‘the promise of’ the 1954 decision of Brown v. Board of Education threatened.
Breyer said Tuesday that differences with his colleagues are based on their clear view of the structure of the Constitution or how they interpret laws. He did not refer to cases in which his colleagues publicly questioned each other’s motives.
Breyer did allow judges to sometimes weigh public opinion or the future consequences of a decision. And he acknowledged that the nine were the results of their individual backgrounds and experiences.
Still, he said, “judicial philosophy is not a code word for ‘politics’.”