Kevin Lamarque/Pool via AP
Ketanji Brown Jackson testifies before a Senate Judiciary Committee hearing on pending judicial nominations, April 28, 2021, in Washington.
I predict that Justice Stephen Breyer will submit to President Joseph Biden by the end of this Supreme Court term a letter of resignation to become effective upon the confirmation of a successor.
This will happen because Breyer is a wise person animated by liberal commitments who understands the precarity of the political situation surrounding the Court and the need to install soon a jurist who would be a suitable successor. At the moment, the Democratic Party controls the Senate, but only by the thinnest of margins. It faces a Republican Party that could retake control with the slightest diminution of Democratic voting strength. This Republican Party has shown itself willing, if empowered, to stymie a nomination—any nomination—by a Democratic president until such time that a Republican can recapture the White House.
Under these circumstances, Breyer will grudgingly, but commendably, resign. He saw up close the debacle of Ruth Bader Ginsburg’s denouement. Surely he wants to guarantee that his legacy will be free of the awful stain that taints Ginsburg’s reputation.
For all of the good that she accomplished as an educator, litigator, and judge, Ginsburg’s memory will (and should) always be shadowed by a terrible misstep: her selfish refusal to resign when Barack Obama and a Democratic-led Senate was positioned to seat someone who would have carried forth and hopefully deepened a liberal jurisprudence attentive to the poor, friendly to labor, protective of the vulnerable, regardful of civil liberties, and attuned to the rights of women, particularly their bodily sovereignty. Instead, Ginsburg’s narcissism opened the door to a jurist who will likely, for a long time, work to impede if not roll back judicial liberalism.
Breyer has been a justice since 1994 when he was nominated by President Bill Clinton to succeed Justice Harry Blackmun. Breyer is well educated (Stanford, Oxford, Harvard Law School), highly cultured, well spoken, thoroughly congenial, and widely (and rightly) respected, even among ideological antagonists. He served as a professor at Harvard University, an influential aide to Sen. Edward M. Kennedy, and a judge on the First Circuit Court of Appeals before his elevation to the Supreme Court.
Breyer shuns the very idea of Court reform, at least for now, because any reforms would be seen, he fears, as politicizing the Court.
He has been a reliable liberal vote. Not a crusader à la Louis Brandeis, Frank Murphy, William O. Douglas, William Brennan, or Thurgood Marshall. But a thoughtful, strong, pragmatic, liberal presence. He has a career about which he can be proud. I find it hard to believe that Breyer would take a chance, more than he already has, on facilitating the risk of losing another justiceship to Mitch McConnell’s machinations in the event that the lawmaker from Kentucky became again the master of the Senate.
Alas, my confidence is diminished by what Breyer has written in his soon-to-be-published The Authority of the Court and the Peril of Politics, an elaboration of this year’s Antonin Scalia Lecture, delivered this spring at Harvard Law School. The book is a meditation on “the importance of public acceptance in safeguarding the role of the judiciary.”
Bereft of arms or the capacity to tax, the Court’s power depends upon public acceptance of the legitimacy of its rulings, regardless of agreement or disagreement with them. Breyer writes approvingly of the increasing prestige of the Court over time, asserts that that high public esteem is essential to “the rule of law,” and urges everyone, including commentators and the justices themselves, to do what they can to avoid undermining trust in the Court. He argues against reforms being proposed, for example, altering terms of tenure or the number of justices on the Court, not out of substantive disagreement; he avoids discussing in detail any particular recommendations. Rather, he shuns the very idea of Court reform, at least for now, because any reforms would be seen, he fears, as politicizing the Court, or politicizing it further, thereby undermining the trust it has earned by convincing the public that it is above partisanship. “[S]tructural change [in the character of the Court] represents a temptation better resisted,” he writes. “[I]f 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.”
In an effort to portray the Court as independent of politics, Breyer propounds preposterous propositions. “I believe,” he writes, “that jurisprudential differences, not political ones, account for most, perhaps almost all, of judicial disagreements.” That belief is plausible only on the basis of idiosyncratic conceptions of jurisprudence and “politics.” Partisan affiliation or ideological commitment are both better predictors of the justices’ votes in the big hot-button, highly salient controversies than “jurisprudential differences.” Yet Breyer writes, “that ‘political’ is the wrong word to describe even the most controversial court decisions.” It is the wrong word only because of his desire to banish a realistic perception of “politics” from an understanding of the Court.
Breyer writes: “[I]f I catch myself headed toward deciding a case on the basis of some general ideological commitment, I know I have gone down the wrong path, and I correct my course. My colleagues think the same way. All studiously try to avoid deciding a case on the basis of ideology rather than law.” That may seem at first blush to be an impressive assertion of the independence of judges from ideology. Actually, though, it is not.
“Law”—particularly constitutional “law”—is so capacious, so open-ended, so amorphous, so malleable, such a broad reservoir of thought capable of supporting just about any conceivable notion, that judges need not go outside of it to effectuate their political aims. Clarence Thomas need not go outside of “law” in order to effectuate his long-held aim to greatly restrict if not abolish the right to abortion. There is plenty of “law” that he and his law clerks can tap and cite to advance that project or virtually any other.
One hopes that Breyer will prize the prospect of perpetuating judicial liberalism more than the prospect of being lauded by opponents and hanging on to an alluring job.
Justice Breyer is sufficiently savvy to sprinkle throughout his essay qualifications in which he can seek refuge if accused of judicial hagiography. So, almost immediately upon declaring that “it is wrong to think of the Court as a political institution,” he states that “to suggest a total and clean divorce between the Court and politics is not quite right either.” The latter remark, however, is merely a strategic, momentary concession. The former contains the point that he is most keen to convey.
“My experience from more than thirty years as a judge,” he asserts, “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.” Whether that superficially imposing sentence signifies anything important depends on what one means by the “rule of law ”—a key term that Breyer declines to define. If “rule of law” is sufficiently vapid, the sentence means little. And if the term is given a definition with bite, another difficulty arises: Breyer’s conflation of description and aspiration. It is one thing to say that one hopes that judges will prioritize loyalty to “the rule of law” over party allegiance. It another thing to say, as Breyer implies, that judges, in fact, always prioritize loyalty to “the rule of law” merely because they have taken the judicial oath. Is one really supposed to believe that no judges prioritize party allegiance over jurisprudential norms? Does the oath have some magical property that suddenly transforms party apparatchiks into judges unreservedly loyal to the rule of law?
Far from illuminating, The Authority of the Court and the Peril of Politics is an exercise in obfuscation aimed at generating assurance, trust, and obeisance, while the Court’s history should inspire worry, skepticism, and an openness to considering the moral obligation of disobedience under certain circumstances. The book’s deficiencies, though, are hardly my main concern; judges often pen writings in which they misdescribe what they do for purposes of eliciting public complacency. My main concern is that this book, along with other considerations, might nudge Breyer toward staying put in order to exemplify the message that judges are above politics.
If he were to resign at the end of the term, some critics would undoubtedly accuse him of hypocrisy—acting politically while rhetorically decrying judicial entanglement in politics. If he stays on, he can say that his conduct is aligned with his preachings. He ought to resign; that would be the politically responsible thing to do. But he may feel constrained to act in what he (mis)perceives to be a consistent, principled, apolitical manner. One hopes that he will prize the prospect of perpetuating judicial liberalism more than the prospect of being lauded by opponents and hanging on for dear life to an alluring job that is fabulously satisfying.
Is there anything more than wishful thinking to support that hope? One thing that might weigh in favor of a timely resignation is that Biden is likely to choose not only someone who will carry on a pragmatic liberalism but a person whose career bears the stamp of Breyer’s mentorship. Biden has virtually promised that he will nominate a Black woman jurist to fill a Supreme Court vacancy. Days before the South Carolina Democratic Party primary, speaking from the debate stage in South Carolina, he said: “I’m looking forward to making sure there’s a Black woman on the Supreme Court.” Rep. James Clyburn, who more than any other single politician was responsible for Biden’s pivotal victory in that primary, has made sure to keep that commitment in view, and the president, for his part, seems to be amenable to carrying through with it.
The Black woman jurist best positioned for the appointment is Ketanji Brown Jackson, who was recently confirmed by the Senate for elevation to the United States Court of Appeals for the D.C. Circuit. A district court judge since 2013 (she occupied the seat vacated by my brother), Jackson has an impeccable record—Harvard College, Harvard Law School, jobs in the private sector and government service—and a clerkship in 1999 with Justice Breyer. The past few Supreme Court appointments have featured scenarios in which new justices have reflected the formative importance of the former justices for whom they clerked. Hence Amy Coney Barrett lauded her old boss Antonin Scalia, while Brett Kavanaugh and Neil Gorsuch lauded their old boss Anthony Kennedy. One would think that Breyer would derive enormous satisfaction upon seeing one of his protégés installed as a justice.
At the risk of publicly indulging in wishful thinking, I predict that Breyer will do the right thing and resign shortly.
