In an expansive two-hour lecture at Harvard Law School, Breyer complained about the common practice – of journalists, senators and others – of referring to judges from the presidents who appointed them and describing the nine through their conservative or liberal approach to the Act.
“These are more than straws in the wind,” said Breyer, 82. “They reinforce the idea, probably already present in the reader’s mind, that the judges of the Supreme Court are mostly political officials or the politicians of the” junior league “themselves, and not lawyers. Judges tend to believe that differences between judges do not primarily reflect policy but judicial differences. The public does not think so. ”
“The public now expects presidents to make court decisions, including those that are politically controversial,” he said. “The court is able to impose a substantial check – a legal check – on the actions of the executive in cases where the executive firmly believes it to be right.”
He said that people “whose initial instincts can favor important structural … changes, such as …” judicial packaging “” should “think long and hard before implementing these changes in the law.”
Proposals to expand the court were raised by liberal defenders, discouraged by the continued conservatism of the Supreme Court and its relatively new 6-3 Conservative-Liberal composition, following the death of Ruth Bader Ginsburg last fall and the election of Amy Connie Barrett to former President Donald Trump. for inherits it.
Breyer is one of three liberals, but on Tuesday he stressed that he believes his differences with colleagues are jurisprudential, not based on ideology or politics.
The court’s six conservatives were appointed by republican presidents and the three by liberal democratic presidents. Breyer said in a speech that decades earlier, such political references would not have been part of the news coverage. But decades earlier, there was no such decent political and ideological symmetry.
Republican appointees, such as Justice John Paul Stevens, who was elected President Gerald Ford in 1975, eventually voted with the liberal wing of the court. Stevens, who retired in 2010, was the last of his kind in this modern age, when presidents scrutinize ideology and judges rarely live up to expectations.
He also complained about the state of today’s Senate screening of candidates for judges.
“The Senate confirmation process has changed over the last two or three decades, becoming more biased with senators far more divided along party lines,” he said. “Senators often describe the candidate they oppose as too ‘liberal’ or too ‘conservative.’ What they say, reported by the press to their constituents, reinforces the view that politics, not legal qualities, drive Supreme Court decisions. ”
Breyer’s speech, as he stood against the purple background of Harvard law and conveyed Zoom, reflected his own broad reading of constitutional guarantees, as well as his aspirations and fears for the modern judiciary.
Breyer wrote some of the strongest opinions, trying to preserve landmarks about abortion rights and desegregation at school. Unlike his right-wing counterparts, he also endorsed the government’s broad regulatory power to protect workers, consumers and the environment.
A former law professor who never loses his academic prowess, Breyer devotes most of his speech to the roots of Supreme Court power before delving into some of his current concerns. “It’s a long lecture,” he warned at the start of the event, noting that he would take a break in the middle.
It fits in with references to his service on Capitol Hill for the late Massachusetts Democratic Sen. Ted Kennedy in the 1970s and ends with references to Albert Camus’s “Plague,” Breyer’s favorite, even before the country was taken over by the coronavirus.
After the inauguration of President Joe Biden, Brier, who was appointed to court in 1994 by Democratic President Bill Clinton, has seen regular news comments from fellow Democrats calling for him to step down while Biden has a Democratic majority in the Senate, although only from the current one-vote margin.
Breyer declined to talk about his retirement prospects and on Tuesday avoided the topic altogether.
If Breyer, the eldest of the nine, announces his retirement in the coming months, he will allow Biden to appoint the first justice for blacks in the country, as Biden promised. This is unlikely to change the ideological composition of the bench, but would increase its diversity and relative youth.
Reasoning is a “failure”
The Harvard lecture on Tuesday was part of an annual event in honor of the late Judge Antonin Scalia. Breyer advocates a judicial approach that broadly interprets the Constitution, as opposed to Scalia’s method, known as originalism, associated with an understanding of 18th-century constitutional guarantees.
Still, Breyer and Scalia, who died in 2016, were friends, and in Tuesday’s lecture, Breyer joked about their appearances at the law school.
During his nearly 27 years in the Supreme Court, Breyer tried to link relations with the Conservatives, saying he disliked dissenters and considered them a “failure.”
It should be noted that some of Breyer’s most convincing opinions were written with disagreement. In 2007, he objected to an opinion by Chief Justice John Roberts rejecting plans to integrate schools in Seattle and Louisville. Roberts said districts cannot take students’ competition into account when performing assignments to reduce racial isolation in the school district.
“This is a decision that the Court and the nation will regret,” wrote Breyer, whose father, Irving Breyer, was a longtime member of the San Francisco School Board. Breyer still wears the wristwatch his father received when he retired from the district. Breyer said Roberts’ opinion threatened the “promise” of Brown’s decision against the 1954 Board of Education.
Breyer said Tuesday that differences with his colleagues are based on their differing views on the structure of the Constitution or how they interpret the statute. He did not refer to cases in which his colleagues themselves publicly doubted the other’s motives.
Breyer sometimes allowed judges to judge public opinion or the future consequences of a decision. And he acknowledged that the nine are the product of their individual background and experience.
Yet, he said, “judicial philosophy is not a code word for ‘politics.'”