Justice Stephen G. Breyer is on a losing streak.
Three times in the past 14 days, he dissented as the Supreme Court issued a series of emergency orders overturning pandemic-related bans and telling the executive branch it must reinstate a Trump-era immigration policy President Biden halted on his first day in office.
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But as Breyer sat for an interview in his overstuffed chambers overlooking the Capitol on Friday — batting away questions about retirement and whether the upcoming term would be his last — the 83-year-old justice was anything but grim.
“Only sometimes when I’m in dissent do I get in a really black mood,” Breyer explained. “When I worked for [Supreme Court Justice] Arthur Goldberg and we’d lose something when I’d think we were so right, he’d say: ‘What do you want me to do? Cry?’？”
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Instead, Breyer has adopted Goldberg’s attitude: “Ok, let’s go on to the next one.” Breyer adds: “If that’s Pollyanna, I’m Pollyanna.”
Breyer might have been a bit fixated on the description — excessively optimistic or cheerful — because he was just told that’s how some in his liberal fan base have characterized the assertions he makes about the Supreme Court’s image in his new book, “The Authority of the Court and the Peril of Politics.”
It is a slim volume based on a speech he gave at Harvard Law School in the spring. He argues the court’s authority is undermined by attempts to fit justices into ideological camps and attribute their disagreements to partisan inclinations. He warns that structural changes to the court, such as liberal proposals to offset the current conservative majority by adding justices, could come at too high a cost.
Breyer warns to think ‘long and hard’ about court-packing
“A short-term victory in the great zero-sum game that our politics has become could bring about grave structural damage not only to an essential constitutional institution but also to our system of government,” Breyer writes.
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If the book could be summed up in a paragraph, it would be this one: “My experience from more than thirty years as a judge has shown me that anyone taking the judicial oath takes it very much to heart. A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
Skeptical? Breyer responds: “I’m giving my experience. So you can’t say I’m a Pollyanna if that’s my experience.”
His point is that the court’s finality is acknowledged by the public and the other branches of government because it is seen as independent.
“The public now expects presidents to accept decisions of the Court, including those that are politically controversial,” Breyer writes. “The Court, with no troops of its own, has reached the point of being able to impose a significant check — a legal check — upon the executive’s actions, even in cases where the executive strongly disagrees with the outcome.”
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Breyer criticizes the media for labeling judges as conservative or liberal. He says it is harmful to constantly remind which president chose them and which political party supported them.
The Senate, which confirmed Breyer in 1994 on a vote of 87 to 9, comes in for criticism as well.
“Recent confirmations have become essentially party-line votes,” Breyer writes. “Senators will often describe a nominee they oppose as too liberal or too conservative, and thus ‘outside the mainstream.’ What senators say, reported by the press to their constituents, reinforces the view that politics, not legal merits, drives Supreme Court decisions.”
In the interview, Breyer acknowledged but did not engage with two other events that fueled liberal enthusiasm for enlarging the court.
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One was then-Senate Majority Leader Mitch McConnell’s (R-Ky.) refusal to hold a vote on President Barack Obama’s choice of Merrick Garland to replace Justice Antonin Scalia after the justice died in February 2016. It was nearly a year before Obama left office and had presented a chance for the court to have a majority of justices chosen by Democrats for the first time in decades.
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The other was pushing through the nomination of Amy Coney Barrett when Justice Ruth Bader Ginsburg died in September 2020. Barrett was confirmed after millions of voters had already cast the ballots that denied President Donald Trump a second term.
Tumultuous path to sixth conservative justice puts Supreme Court in the middle of political fray
The result is that Breyer serves now with only two other justices nominated by Democratic presidents, while there are six justices chosen by Republican presidents, of varying degrees of conservatism.
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This is not cause for particular concern to him, Breyer said.
“It’s a big country,” he said in the interview. “It’s not such a terrible thing if you have different presidents appointing people with different outlooks, of different points of view, in a court where my first obligation is to remember I’m there for everybody.”
In the book and in the interview, Breyer strives to counter the view that this dictates the outcome of cases.
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“The Court refused to hear or decide cases grounded in the political disagreements arising out of the 2020 election between Donald Trump and Joe Biden,” he wrote, even with three Trump nominees among the nine. In recent terms, the court disallowed Trump’s attempts to add a citizenship question to the census, kept his administration from ending the program that protected immigrant “dreamers” brought here as children and rejected the president’s efforts to keep his financial records from prosecutors.
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Breyer has served his entire 27 years on a court dominated by conservatives. But he added in the interview: “I believed Obamacare was constitutional. And three times the court said Obamacare was constitutional.”
That said, the court’s jurisprudence is clearly moving to the right. In the term that begins in October, the justices have chosen to review a gun-control issue the court has avoided for years and accepted an abortion case that conservatives have urged it to use to overturn Roe v. Wade.
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Recent emergency rulings have shown the court’s majority is unwilling to demonstrate the deference to the Biden administration that it often extended to the Trump administration. On a string of hot-button issues, regarding the death penalty, abortion, pandemic restrictions and other controversies, Breyer and Justices Sonia Sotomayor and Elena Kagan find themselves in perpetual dissent.
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In his objection Thursday from the decision to end an eviction moratorium put in place by the Centers for Disease Control and Prevention, Breyer said the majority was abandoning its usual procedures.
“These questions call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions,” Breyer wrote. “We should not set aside the CDC’s eviction moratorium in this summary proceeding.”
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In the interview, Breyer said his views about politics and the court were not intertwined with a decision on when to retire. He has faced an unprecedented campaign by liberals to leave now, when Biden can name a younger, African American woman, as he pledged during the campaign, and a Democratic Senate can confirm her.
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The pressure has ranged from a barrage of op-eds to a daily Twitter reminder that he has not yet retired to a truck circling the Supreme Court with a sign calling on him to pack up.
“I wasn’t here,” Breyer said, smiling.
Breyer doesn’t like to talk about retirement, or how he will decide when it is time to leave his lifetime appointment. In a Thursday interview with the New York Times, he seemed to acknowledge that leaving when there was a president who would nominate a like-minded successor would factor into his decision. By Friday, he seemed to regret getting into it.
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“I don’t think I’m going to die here — I hope,” Breyer said. “There are a lot of considerations, and I’ve mentioned health, I’ve mentioned the considerations of the court. I’m aware of what’s in the newspapers.”
He said he is not sure what being 83 is supposed to feel like, but he is energetic and quick, and last term, Chief Justice John G. Roberts Jr. assigned him some of the court’s biggest cases.
The last paragraph of his book begins, “I am an optimist.”
“That’s the problem with getting older, what, 83?” Breyer said in the interview. “What you really believe, what you really think is important, begins to sound more and more like a fortune cookie.”