Supreme Court Justice Stephen G. Breyer cautions against ‘the peril of politics’

At Scalia Lecture, Justice Breyer warns that changes to the Court could erode public confidence

Justice Stephen Breyer

Credit: Harvard Law School

At Harvard Law School’s annual Scalia Lecture on Tuesday evening, Stephen G. Breyer ’64, associate justice of the Supreme Court of the United States, warned against alterations to the nation’s highest court that could erode the public’s longstanding confidence in the judiciary, instead inviting the American people, and the Court itself, to work together to maintain and build trust in the rule of law.

Justice Breyer’s wide-ranging two-hour lecture, which was brimming with quotations from the likes of Cicero, Shakespeare, and Camus, and which cited more than 20 Supreme Court decisions spanning two centuries of American jurisprudence, was titled “The Authority of the Court and the Peril of Politics.” In it, he traced the history of the judicial branch’s hard-won credibility since the nation’s founding, and implored would-be Supreme Court reformers, like those at the HLS Rappaport Forum last month, to confront how changes could impact one of the nation’s most trusted institutions.

“This lecture … reflects my own effort to be certain that those who debate [reform] proposals also consider an important institutional point, namely how would ‘court packing’ reflect and affect the rule of law itself,” Justice Breyer said.

The evening began with an introduction by Dean John F. Manning ’85, who foreshadowed Justice Breyer’s later remarks on cooperation and compromise by saying that while “… [Justice Breyer] and Justice Scalia disagreed pretty fundamentally on questions of statutory interpretation … when they disagreed, it was always with mutual respect and friendship.”

Justice Breyer, who has recently fielded calls from some Democrats to retire from the Court during President Biden’s term in office to give him the opportunity to appoint a successor, began his lecture by recounting the Supreme Court cases that led to our modern deference to the rule of law.

Although Marbury v. Madison (1804) is often understood as establishing judicial review, said Justice Breyer, “the acceptance of this view was not inevitable, nor did it become accepted without a long struggle.” In fact, he said, at times the Court has encountered active resistance, as when President Andrew Jackson refused to obey its ruling in favor of the Cherokee Nation in Worcester v. Georgia (1832).

Following Brown v. Board of Education (1954), and with the help of civil rights leaders and President Dwight D. Eisenhower, the Court “… won a major victory for constitutional law, for equality, and above all for justice itself,” he said. “Justice itself, the justice of the Court’s integration decisions, helped to draw respect for, and increased the authority of, the Court.”

That respect and authority, argued Justice Breyer, is the result of an ongoing partnership between branches of government; a delicate pas de deux that has enabled the Court to issue rulings — sometimes unpopular ones — that are accepted by people and politicians alike, even if sometimes begrudgingly.

In return, the Court eschews personal political beliefs for time-tested interpretive methods in making decisions, attempting to “minimize the number of cases likely to produce strongly felt political disagreements,” and deciding cases on narrow grounds where it can.

As a result, Americans have come to accept the Court’s judgments, even when they dislike them. “Put abstractly, the Court’s power, like that of any tribunal, must depend upon the public’s willingness to respect its decisions, even those with which they disagree and even when they believe a decision seriously mistaken,” said Justice Breyer.

We should not take this acceptance for granted, he added. “As the air around us, unnoticed, allows us to breathe, so this habit allows the rule of law itself to flourish,” he said.

Today, Gallup polls show Americans’ confidence in the nation’s courts remains much higher than in the executive or legislative branches. Yet, said Justice Breyer, “… we see a growing public suspicion and distrust of all government institutions … [and] a gradual change in the way the press … understand the judicial institution,” with journalists routinely affixing labels such as “conservative” or “liberal” to judicial nominees.

These changes have led to an increased perception of the Court as a political body—a view that Justice Breyer strongly rejects. Justices are not “junior level politicians,” he said. Instead, “I believe jurisprudential differences … account for most, perhaps almost all, judicial disagreements.”

Alignments among members of the Court, according to Justice Breyer, do not arise from politics, but “… may reflect similar views as to the meaning and comparative importance of particular constitutional provisions,” he said. “Some judges emphasize text and history; some emphasize purposes and consequences.”

If and when the Court overturns itself, as it did during the 1930s when it finally gave President Franklin D. Roosevelt a victory for his New Deal legislation, causing him to abandon his own court-packing scheme, it is not necessarily due to a change in the political makeup of justices, but rather “… reflect[s] to a degree the changing political views of a majority of this nation’s citizens,” he said.

Justice Breyer also challenged the idea of a politically-charged modern Court.

Bush v. Gore is often referred to as an example of its favoritism of conservative causes. But the Court did not hear or decide cases that affected the political disagreements arising out of the 2020 election,” he said. “It did uphold the constitutionality of Obamacare, the health care program favored by liberals. It did reaffirm precedents that favored a woman’s right to an abortion. It did find unlawful certain immigration, census, and other orders, rules, or regulations, favored by a conservative president. But at the same time it made other decisions that can reasonably be understood as favoring ‘conservative’ policies and disfavoring ‘liberal’ policies.”

These perceptions matter, said Justice Breyer, because “If the public sees judges as ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the Court’s power, including its power to act as a ‘check’ on the other branches.”

To retain the public’s trust, he argued, changes should come not from political reform, but in recommitment to ideals within the Court itself and in the American people.

To the Court, he implored justices to “do [their] job,” using the interpretive tools available to them. More importantly, counseled Justice Breyer, “do not look for or expect popularity,” and try to reach decisions through reasoned deliberation and compromise.

Justice Breyer suggested that the Court think deeply about its audience when drafting decisions. “An opinion that will have a broad public audience requires writing that is simpler and more direct than does an opinion about bankruptcy,” he said.

The Justice also had ideas for the public.

Because the rule of law relies on peoples’ understanding of its protections, “We need to explain it to our children and to our grandchildren, hoping that they too will understand its importance,” he said.

“I keep in mind the fact that we are a nation of nearly 330 million people of every race, every religion, many different national origins, and holding virtually every possible point of view,” he said. “I regularly see … these highly diverse groups of people trying to work out their differences through law, rather than in more brutal ways.”

He added that Americans might rededicate themselves to civic participation – including voting, running for office, and serving in local organizations – and to the values of cooperation and compromise.

Instead of risking “further eroding [the] trust” of the public through changes to the Court that could be perceived as politically motivated, Justice Breyer recommended a more democratic solution: an ongoing affirmation of the American experiment by its citizens.

Said Justice Breyer, “Trust in the Court, without which our system cannot function, requires knowledge, it requires understanding, it requires engagement—in a word, it requires work.”

Justice Breyer’s full lecture is expected to be published in September 2021 by Harvard University Press.

The Scalia Lecture series, which was established by an anonymous donor in 2013 in honor of former Supreme Court Justice Antonin G. Scalia ’60, is aimed at promoting and advancing the understanding of the founding principles and core doctrines of the U.S. Constitution.