by Stephen Breyer (Harvard University Press, 128 pp., $19.95)
Justice Stephen Breyer has become a persona non grata within many left-leaning circles. In refusing to relinquish his seat on the Supreme Court, he’s effectively barring President Biden from appointing and confirming a younger justice whose jurisprudence generally aligns with contemporary Democratic Party policy aims. Headlines like “It’s Time for Stephen Breyer to Retire From the Supreme Court” in The Nation, and “How Stephen Breyer Is Helping to Destroy the Norms He Claims to Cherish” in The New Republic, sum up the mood rather well.
Justice Breyer’s devotion to the Court’s legitimacy and its operating above partisan politics seems to have informed his refusal to bow out to partisan pressures. That same conviction permeates his new book, The Authority of the Court and the Perils of Politics.
A lightly edited transcript of Breyer’s April 2021 Harvard Law School Scalia Lecture, the book is a short and enjoyable read. Breyer’s defense of the Court’s legitimacy and denunciations of facially partisan reforms will further arouse left-leaning ire toward him. He persuasively argues that the Court’s legitimacy—consisting primarily of politicians’ and the public’s acceptance of its rulings as valid and binding, even when in disagreement with their substance—has been a hard-fought victory for the judiciary. Breyer believes that politicized reforms to the Court (like packing it) would serve to erode that legitimacy. The rule of law would only stand to suffer.
Breyer turns to history to bolster his point. He reminds us that the weakness of the Court as an institution played a major role in shaping Chief Justice John Marshall’s landmark ruling in Marbury v. Madison (1803) vindicating judicial review. While Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is,” Breyer notes that Marshall did so “in a way strategically designed to avoid the risk that the president,” Thomas Jefferson, “would ignore what the Court ordered.” He asserted the Court’s power to rule on the constitutionality of laws, but did so in a manner that squared with President Jefferson’s political objectives (not having to grant Marbury his commission), expertly avoiding a confrontation with the executive. After all, Jefferson and many of his fellow politically ascendant Democratic-Republicans emphatically believed that the judiciary did not have the sole right “to say what the law is.”
The Court had yet to attain in 1803 its unquestioned legitimacy as the expounder of the Constitution. And Breyer notes that while Marshall may have averted a run-in with Jefferson, he failed to do so later with Andrew Jackson. In Worcester v. Georgia (1832), Marshall held that Cherokee Indians in Georgia had a legal right to their disputed land by virtue of a federal treaty. Gold-hungry Georgians disagreed. Jackson sent federal troops into Georgia not to carry out the execution of the law, as interpreted by the Supreme Court, but to violate the Court’s ruling and help remove the Cherokees.
These two examples from the early Republic underscore Breyer’s main point: It took time for the Court to build up its institutional legitimacy. Indeed, “Supreme Court justices would long remain uncertain whether the Court could sustain a judgment that other branches or the public strongly opposed.” By the 1930s, however, when President Franklin Roosevelt sought to bypass the Court’s opposition to his New Deal by packing it, he faced a backlash from the public. The Court had finally achieved a reputation as a nonpartisan institution wedded to the Constitution and law—not politics.
This reputation—this judicial legitimacy—has largely persisted through the 20th century and into the 21st, with the other branches of the federal government enforcing (however delayed), and acquiescing to (however begrudgingly), the Court’s rulings as a matter of course. Think here of President Dwight Eisenhower’s sending in the 101st Airborne to Little Rock to escort nine Black Students into school and Al Gore’s bowing out of the presidential race in 2000.
Breyer’s overarching point is that the Court’s legitimacy is not a given. Tampering with the Court for partisan political reasons—however fervently and genuinely held—should be avoided. Moreover, he laments the various factors that have contributed to the recent erosion of the Court’s legitimacy, such as the “growing public suspicion and distrust of all government institutions,” including the Court, as well as shifts in media coverage that paint the Court’s judges as mere “unelected political officials” instead of principled jurists.
Breyer hopes such unhelpful trends will halt. He explicitly pushes back against the notion that what happens at the Court is mere politics by other means: “Judicial philosophy is not a code word for politics.” He also argues that everyday citizens need not be passive actors when it comes to maintaining the Court’s legitimacy—and with it, the rule of law. He advocates for increased participation in public life and renewed attention to civics education in particular as key ways to prevent unhelpful and untrue assertions regarding the politicization of the Court from gaining purchase. And above all, he warns against structural reforms like Court packing:
[S]tructural change represents a temptation better resisted. For if the public comes to see judges as merely ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only decline. With that, the Court’s authority can only decline, too, including its hard-won power to act as a constitutional check on the other branches. Thus 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.
While Breyer makes a strong, historically informed case as to the misguidedness of Court packing and the importance of upholding the Court’s reputation as a non-politicized legal body capable of checking the unconstitutional excesses of its fellow branches, his arguments as to how precisely the Court has built up its legitimacy are less persuasive.
Building off Cicero’s observation that governing authorities can obtain public obedience to their orders via fear of punishment, hope of reward, or doing justice, Breyer contends that the Court has primarily relied upon the third option to sustain its legitimacy: doing justice. He writes that the Court’s “ability to act justly, at least in my view, does play a major role in obtaining the public’s respect and consequent obedience. The Court’s history illustrates how that is so.”
But what, exactly, does acting justly entail? And how has the Court’s acting so contributed to its legitimacy?
Breyer does not say, and he does not provide much by way of hard evidence to support his claim. For example, after stating that “justice itself … helped to promote respect for the Court and increased its authority” following the integration decisions of Brown v. Board of Education (1954) and Cooper v. Aaron (1958), he admits that “I cannot prove this assertion. But I fervently believe it.”
I would (humbly) contend that the Court has built up its legitimacy to such impressive levels not by dispensing substantive justice, but rather by doing exactly the sort of legitimacy-building work that Court packing would impede: Staying above the fray of politics and simply interpreting the law in good faith. Procedural justice and institutional competence, not substantively just results per se, have historically been the keys to the Court’s legitimacy.
In a democratic society like our own, the decisions of a nine-person, Ivy-League-educated panel of lawyers are not going to garner much widespread public acceptance if they rest on those lawyers’ individual conceptions of justice. Instead, like any institution, the Court will continue to foster public acceptance of its authority and obedience to its decisions by doing what it is supposed to do.
As thinkers like Yuval Levin have argued, institutions weaken and lose the trust of both their members and the wider public when they begin to operate outside their rightful bounds. Institutions serve purposes; when they stray outside their purposes, their legitimacy and authority falter.
We trust the plumber to fix our sink; we don’t turn to him for spiritual advice. And vice versa with our priests, ministers, and rabbis: As a Catholic, I would say that Pope Francis is an extremely wise and holy man, but I don’t think I’d trust him with a wrench. Similarly, in figuring out what justice requires in the realm of public affairs, we don’t assume that well-credentialed lawyers have the answer. (I write this as someone who is in the process of becoming a well-credentialed lawyer.) Instead, We the People turn inwards—to one another—to figure out how to govern ourselves in accordance with justice. We argue, compromise, and deliberate. We’re in charge; the justices, as Breyer himself notes, are there to police constitutional boundaries, leaving us with as wide a leeway as is constitutionally permissible to govern ourselves.
Yet Breyer contends that in particularly fraught cases, like in the abortion context, the Court has built up its legitimacy by turning to the fundamental principles and goals of the Constitution—“to establish a workable democracy, to protect basic human rights, and to help hold together a highly diverse society.” In upholding these principles and thereby advancing Justice “with a capital ‘J,’” writes Breyer, “the Court can preserve, perhaps augment, public confidence in its authority.”
But that’s not true.
More typically, when the Court has reached beyond the bounds of the Constitution’s text and history and into the realm of Justice with a capital J, its legitimacy has weakened. By dipping its toes into political waters, even in the name of justice, the Court invites backlash and undermines its own authority.
In the interest of the Court’s legitimacy, the justices must stick to their guns—law, text, precedent, history, and tradition. Justice Breyer is right to worry about the effects of efforts like Court packing. For the Court, judging and letting the chips fall where they may, and not dispensing justice unmoored from the Constitution’s text, is the best means to maintain its hard-won authority.
Image: From Volume 2 of the History of the City of New York by Martha Joanna Lamb (1881), Public Domain, https://commons.wikimedia.org/w/index.php?curid=47214286
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