Supreme Court Associate Justice Stephen Breyer retired from the high court in 2022, but hasn’t finished urging his former conservative colleagues to abandon what he sees as an aggressive right-wing approach in the way they interpret the law.
“Slow down. Period,” Breyer, 85, said bluntly about his message to the court majority in a wide-ranging interview with ABC News Live PRIME.
“You’ve been here a long time,” he added, addressing the three judges appointed by former President Donald Trump. “It takes three years, four years, five years maybe before you start to adapt.”
Breyer engaged in an all-out media blitz with the release of his 10th book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” an attack on the method of judgment favored by his former colleagues that now threatens generations of established men. legal precedent.
As the U.S. Supreme Court prepares to issue major decisions in a series of landmark cases this spring, Breyer pulls back the curtain on this embattled institution at a critical time and offers an optimistic assessment of its future. The following is a selection of questions and answers lightly edited for brevity and clarity.
Some have described this term as perhaps the most important term of the Supreme Court in a generation. They attack abortion, gun rights for domestic abusers, surrogate actions, free speech on social media and presidential immunity. Any regrets about not being among them in the mix?
Sure, but I mean, you reach a certain age, and that’s the human condition.
What is the mood in court at the moment?
I just had lunch with them. (The atmosphere) has always been nice, and that’s probably, to my knowledge, still true.
Does the fact that you’re still plugged in suggest that you see a role for yourself behind the scenes?
Yes, I think there is a role. So how can I help? I’m writing this book. It’s like that.
Some of it sounds like you’re speaking directly to the current court, to the new members of the court, and one of the messages I hear is “slow down.”
That’s right. And it’s in slow motion, period. You’ve been here a long time. It takes three years, four years, five years maybe before you start to adapt.
Does this group of judges seem more enthusiastic than others you have studied?
No way to tell. I say, as Byron White said, with every new judge, it’s a new court. It’s true.
You talk about the Dobbs case in the book. Justice Clarence Thomas, explicitly in its agreement with Dobbs, called for a review of certain other decisions: same-sex marriage, contraception. Could these be in danger?
I tend to think that over time they face less risk than is currently feared.
I take your optimism. But some might say you’re a little naive.
I have 40 years of experience.
Why are you so optimistic that members of this conservative majority will turn around and come back and see the light, as you say in the book, within the next three or four years?
I’m saying there are reasons to think they won’t change, and reasons to think they will. They may not give up on being a more conservative person than any other person. But they can modify a little. Why am I saying that ? Because I think they’ll find out that (their approach) doesn’t work.
You have publicly chastised the media for using the labels “liberal” and “conservative” to describe judges. And I understand your point of view on party politics. But why aren’t these competing philosophies – textualism versus pragmatism – simply substitutes for Republican and Democratic views?
It’s a good question. Politics in the sense it was used when I worked for Senator Ted Kennedy: Are you a Republican? Are you a Democrat? Are you popular? Are you unpopular? How will this decision here play out on your overall image? How will this generate more votes? – that is not here. But there are things that we see there, which depending on the case, we could say “political”, even if I don’t think that is the right word. What Paul Freund, a great professor of (constitutional) law, said about politics thus enters the judicial system: no judge decides a case based on the temperature of the day, but every judge is influenced by the climate of the season.
Next month will mark 70 years of Brown v Council, the unanimous Supreme Court decision that struck down the “separate but equal” principle and banned racial segregation in American schools. Do you think Brown’s vision has been fully realized?
No, but Brown did a lot of other things, like removing Jim Crow from the law. You can’t say it’s nothing; it’s quite important. But there are many more things to do before people become truly equal, and there is still much to be done.
It’s still striking how long it took after the 1954 Brown decision for states to comply — for schools in Little Rock, Arkansas, to be integrated, for example.
President Eisenhower had to send troops. He sent the 101st Airborne. It took Elizabeth Eckford and the others to get into this school. So, it was a happy day, right? The integration has taken place. We have the Little Rock Nine at school. This is progressing. Good day. Yeah, that would be true if I could end the story here, but I can’t.
A president was needed. It took public opinion. Troops were needed. What happens if a president disagrees with the court’s decision?
Three presidents have defied the court. Andrew Jackson and the case of the Cherokee Indians in Georgia are an example… But do you think that George Bush liked the decision of the Supreme Court, which ruled in favor of the inhabitants of Guantanamo and against him, the president and the secretary of defense and so on? No, he didn’t like it, but he said, I don’t like it but I’m going to follow him.
You also argued that the rule of law only survives if the public has confidence in the institution. Why should the public believe that members of the Court are respecting its code of ethics when there is no enforcement mechanism or independent oversight?
Because the only way to truly punish a federal judge is to impeach him. They wrote it into the Constitution.
MORE: All 9 Supreme Court Justices Oppose Oversight: ‘It Raises More Questions,’ Senate President Says
Many people say that the court polices itself. How is it possible ?
Well, let’s change the Constitution. Do you want judges to decide based on public opinion? Well, what about you? No! Of course not. Of course not.
The headlines surrounding some of your former colleagues have been very concerning to people. The so-called trips, the book deals, things like that – the accusations of misconduct. Don’t you think there is a need for an independent review on this?
I did not say that. What I said was that there was only one real way to punish the judge, and that was to impeach him.
Much has been said over the past year about the political activities of judges’ wives. Does this ever become a problem, in your opinion?
Suppose your wife wants to give $100 to candidate X and you are a member of the court. Can she do it?
Can she? What does the code of ethics say?
That doesn’t say she can’t. But it’s not just about what the code of ethics says. I thought it was a time when women made their own decisions. I thought it was a time where they weren’t just doing what was best for their husbands.
They are independent people.
I thought so. I thought so.
Do you fear the political reaction to the Court’s decisions? And do you fear violence?
There have been cases where someone was arrested leaving the West Coast with weapons intending to attack one of the judges.
Judge Kavanaugh.
Yes. So, of course, it’s a concern, and it’s a very, very serious problem. You don’t want disagreements between people, which are numerous and can be healthy, to turn into violence. Totally wrong, totally wrong, totally wrong.
Have you ever been threatened as a judge?
I don’t know, because they (the Supreme Court police) take the letters.
So, you never felt in danger?
No.
Two years ago, you faced heavy pressure from liberals and Democrats to retire. There was even a van driving around the Supreme Court with a billboard saying, “Breyer Retire Now.” Have you heard calls to retire? And were you worried that if you left in the middle of all of this, it would feel like you were giving in to political pressure?
Those two things sort of. So here is.
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Any advice for Justice Sonia Sotomayor, who seems to be facing the same situation right now?
People can say whatever they want. They can say whatever they want. It’s their decision to say what they want. I don’t have to agree with this.
Finally, when you retired from court, you declared that the country was an ongoing experiment in democracy – that it was “the next generation, the one after that, my grandchildren and their children, who will determine whether the experiment still works” — and that you are optimistic. Why are you so optimistic when every day we are bombarded with reasons why this democratic experiment is on the brink of collapse?
It is not the first time. And Senator Kennedy used to say, when the country goes this way, you know, it falters but survives. And Churchill said the United States always did the right thing – after trying everything. There is a lot to learn before you become too depressed.
Justice Stephen Breyer’s Direct Message to Supreme Court Conservatives: “Slow Down” was originally published on abcnews.go.com
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