After the U.S. Supreme Court closed its term earlier this month, five of Justice Stephen Breyer’s former clerks essentially called for the 82-year-old Clinton appointee to retire, saying they are “genuinely perplexed” as to why he hasn’t yet made way for a liberal Biden nominee. This occurred not long after Sen. Mitch McConnell announced if Republicans take back control of the U.S. Senate, there would be no vote on a high court pick during an election year in 2024.
However, according to comments made by Justice Breyer during a May 28, 2021, National Constitution Center webinar*, these former clerks are making a political calculation at odds with their former boss’ jurisprudential philosophy. Namely, there is no room for “real politics” at the Supreme Court.
The webinar, hosted by the NCC’s President and CEO Jeffrey Rosen, touched upon a wide variety of topics stretching from Justice Breyer’s San Francisco upbringing, through his college years and his time on the late Sen. Ted Kennedy’s staff, right up through the court’s current business and personal struggles hosting his high energy young grandchildren at his Cambridge, Mass., home during COVID.
But perhaps Justice Breyer’s most interesting and revealing comments came in response to a question referencing a speech he recently gave at Harvard University, where he cautioned attendees not to view the court as a political body, saying, “Justices are not junior level politicians.
“If I am writing an opinion and I think that ideology is coming into it, I think twice or three times. That is not the job,” said Breyer. “Anyone who thinks it’s pure politics is absolutely wrong.”
He compared the considerations he took into account as a staffer for the man known as the “liberal lion of the Senate,” Sen. Kennedy, to his current position as an associate justice of the nation’s highest court.
“Are you a Republican or a Democrat? What will the majority be at the Executive Session? Can we get people there? Is this popular? Is it not? I don’t see that at the court. … I haven’t seen it. That’s what I call real politics.”
Justice Breyer did concede the discussion around politics and the Supreme Court can become “complicated” when trying to make the distinction between a justice’s political and philosophical worldview.
“Suppose you think, deeply, free enterprise is the secret of success in this country. Or suppose you deeply think that at least some moves toward socialism are justified and will help. Is that a political view? Or is that a philosophical view? Is that political philosophy?…Well, I think those things are often hard to separate out. And I can’t say things like that never influence a decision.”
After 25 years on the court, Justice Breyer’s jurisprudential philosophy is clear. He is widely regarded as the court’s most “pragmatic” associate justice, a term he embraced but was also careful to define.
“Pragmatism is not sitting there doing whatever you think is good,” he explained. “When you have a statute and the statute has some words in it. And these words can be interpreted in two or three different ways … the issue is how to interpret them. What do they mean?
“Of course, you read the words. If the word is ‘vegetable,’ that isn’t a fish. You’re not going to go outside the words … but it often doesn’t give you the answer. And you look at the history. And you look at the purposes. And you look at the consequences, too. And you try to evaluate them from the point of view of what a reasonable legislator writing this statute would have thought these words were there to achieve.”
Justice Breyer differentiated this approach from the approach taken by “textualists” – justices who abide strictly by the letter of the law and the Constitution – noting he prefers “a purposed based approach toward statutory interpretation rather than a textual version.”
“Because I think they make serious philosophical mistakes, the textualists,” he said. He also noted, despite the high percentage of unanimous decisions by the court each term, which he placed at “almost half,” that disagreements often occur.
But do these disagreements get heated? Do they generate the personal animosity so often on display on cable news programs and in social media feeds? According to Justice Breyer, not even close.
“I’ve never heard a voice raised in anger. Never. I have never heard people say mean things about each other. It’s professional. You have friendship and respect, always,” he said.
A remarkable statement given the number of highly controversial cases that have reached the high court, and the diverse background and judicial views of the nine justices on the court, who were appointed by five different presidents from both political parties. However, completely consistent with remarks recently made by Justices Sotomayor and Gorsuch.
“You have a different view? So what? What kind of character does the person have? That’s the basis of friendship,” Breyer said, referencing his long-time, perhaps unlikely, friendship with his philosophical counterpart on the court, Justice Clarence Thomas. “He’s a very, very decent person,” Breyer said.
While the Supreme Court might not experience bitter partisanship, Justice Breyer did express “worry” about the polarization of political groups around the country, especially those who involve themselves in the sideshow that has become our Supreme Court nomination process.
“When a judicial nomination comes up, they will try to get X or Y appointed or X or Y not appointed. That isn’t because X or Y is going to act politically,” Breyer explained. “It’s because they think X or Y will have jurisprudential views … that will correspond with what they think is politically good. … What I see is that judges are acting the way they think is the proper way to act, as judges.”
Throughout the webinar, which lasted about an hour, Justice Breyer came across as a man who is keenly aware he has many more years behind him on the court than in front of him, and very thoughtful about his history with the court and his legacy. Is he ready to retire? He says he hasn’t made a decision. But when that day comes, according to Justice Breyer, it won’t be because he heeds the call of five former clerks asking him to play “real politics” to benefit a political party.
A few other tidbits from the interview:
- Justice Breyer believes his most impactful opinions involved the death penalty and affirmative action.
- The central question in one of Justice Breyer’s favorite cases was whether it is permissible to copyright a design for a cheerleader’s uniform.
- Justice Breyer is currently reading a book about the history of the Hundred Years’ War.
- Justice Breyer is currently watching “M*A*S*H” re-runs.
- Justice Breyer suggests reading “The Education of Henry Adams.”
*Note: The National Constitution Center and its President and CEO Jeffrey Rosen hosted this discussion. The National Constitution Center serves as America’s leading platform for constitutional education and debate, fulfilling its congressional charter “to disseminate information about the U.S. Constitution on a nonpartisan basis in order to increase awareness and understanding of the Constitution among the American people.” The National Constitution Center will present during the Roundtable’s 2021 National Forum on K-12 Philanthropy held from September 12-14, 2021, in San Antonio, Texas. Register today!
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