Justice Breyer’s new warning for Democrats couldn’t have come at a worse time

Justice Stephen Breyer — a Bill Clinton appointee who has served on the Supreme Court since 1994 — has chosen this moment to admonish liberals for failing to respect the rule of law.

He’s done so despite the fact that less than five months ago, a violent mob of former President Donald Trump’s supporters invaded the US Capitol in a vain attempt to keep Trump, who had just lost his bid for reelection, in office without an electoral mandate. In the months that followed, state-level Republicans loyal to Trump passed legislation that appears to serve no purpose other than to restrict voting. And now, Republican leaders are blocking a bipartisan investigation into the January 6 riots at the Capitol.

And yet, in the midst of what might be the greatest threat to liberal democracy in the United States since Jim Crow, Breyer warns that liberals are endangering the rule of law because a small minority of Democrats have suggested taking aggressive action to rein in the Supreme Court.

And Breyer is doing this at the same time that he’s urging Democrats to find common ground with a party that refuses to investigate an attack that endangered much of Congress.

In a book to be published this fall, Breyer warns the US will pay a heavy price if it does not show deference to the judiciary — and that even though the Supreme Court is now more conservative than at any point in the last three generations, it is a mistake to think any of his colleagues are rank partisans.

“A judge’s loyalty is to the rule of law,” Breyer writes, “not the political party that helped to secure his or her appointment.”

He also does not hide his motivation for writing the book, titled The Authority of the Court and the Peril of Politics: “Proposals have been recently made to increase the number of Supreme Court justices,” Breyer notes. “I aim to make those whose reflexive instincts may favor significant structural (or similar institutional) changes, such as forms of court-packing, think long and hard before embodying those changes in law.”

What Breyer’s book can tell us about his retirement plans

With respect to the idea of putting additional justices on the Court, Breyer realistically has little to fear from Democrats.

Though a handful of Democratic lawmakers did introduce legislation that would add four seats to the Supreme Court and give Democratic appointees a 7-6 majority, the bill landed with a thud in Congress. In April, House Speaker Nancy Pelosi said she had “no plans” to bring the bill to the floor for a vote. And, while President Joe Biden formed a commission to study Supreme Court reforms, no outspoken proponents of reform were appointed to it.

Democrats are all too familiar with the archetype of a self-identified liberal or Democrat who seems more frightened of the hypothetical possibility of progressive overreach than they are of Republicans, who are taking very real steps to foreclose democracy. Think of Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), whose loyalty to the filibuster is likely to kill any chance of passing a voting rights bill before the 2022 midterm elections, which could hand control of Congress to Republicans.

But Breyer’s decision to join the ranks of liberal scolds could prove even more consequential than Manchin and Sinema’s allegiance to the filibuster due to one fact: Breyer is 82 years old.

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Because the Senate is malapportioned in ways that benefit Republicans, the Senate’s current Democratic majority may be Breyer’s last opportunity to retire under a president who will nominate a like-minded justice — and under a Senate that might actually confirm that justice.

But his book can be read as an indictment of such timed retirements, which are an unavoidably political act — the entire purpose of Breyer’s retirement would be to ensure his seat is filled by a Democrat. And Breyer’s new book is a manifesto against the idea that courts should be perceived as political. “If the public comes to see judges as merely ‘politicians in robes,’” he writes, “its confidence in the courts, and in the rule of law itself, can only decline.”

I do not want to minimize the concerns Breyer raises in his book. The justice is correct about many things. Courts play an important role in maintaining the rule of law, and a widespread perception that the courts are political risks triggering a public backlash that destroys the judiciary’s ability to function.

But Breyer needs to grapple with the possibility that Democrats increasingly perceive the Court as a partisan institution because it has become a partisan institution. As he ponders retirement, he needs to consider whether a Court that already works hard to limit voting rights would be perceived as less political should Republicans gain a 7-2 majority.

The problem Breyer describes in his book is one at the heart of liberalism. As George Mason University political science professor Jennifer Victor told me on Twitter, “Democracy comes from institutions. The problem is, more and more people have come to realize that flawed institutions in the US are preventing it from achieving democracy.”

Democracy can die if our institutions collapse, but it can also die if they are captured by illiberal or anti-democratic forces. And Breyer is so focused on the former problem that he appears blind to the latter.

A lesson from Jim Crow

In 1993, law professor (and future Supreme Court justice) Elena Kagan published a tribute to her former boss, who died earlier that year.

The former boss was Justice Thurgood Marshall, the first Black person to serve on the Supreme Court and the greatest lawyer of the 20th century. Marshall is best known for his Supreme Court advocacy — he won a unanimous decision in Brown v. Board of Education (1954), which declared public school segregation unconstitutional — but he was also an accomplished trial lawyer. Marshall spent years defending innocent Black men in Southern courts, often risking being lynched in order to do so.

In Kagan’s tribute, the future justice recounted Torres v. Oakland Scavenger Co. (1988), whose opinion Marshall wrote, where the legendary civil rights lawyer ruled against a man who said he was a victim of race discrimination.

Torres involved Jose Torres, one of 16 Hispanic plaintiffs in a case alleging employment discrimination. Because of a clerical error by his lawyer’s secretary, Torres’s name was inadvertently left off of a crucial court filing. The question was whether the mistake doomed Torres’s ability to pursue his case, under a procedural rule providing that the court filing ”shall specify the party or parties taking the appeal.”

Although Marshall’s opinion recognized the rule demanded a “harsh result” in Torres’s case, he nonetheless ruled against him.

Kagan, who was Marshall’s law clerk when Torres was decided, recounts that she “pleaded with Justice Marshall to vote” in Torres’s favor, but Marshall refused.

“The Justice referred in our conversation to his own years of trying civil rights claims,” Kagan wrote in her tribute to her late boss. “All you could hope for, he remarked, was that a court didn’t rule against you for illegitimate reasons; you couldn’t hope, and you had no right to expect, that a court would bend the rules in your favor.”

Marshall’s lesson to his young clerk was that “it was the very existence of rules—along with the judiciary’s felt obligation to adhere to them—that best protected unpopular parties.”

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More broadly, Marshall understood the same idea Victor conveyed on Twitter: Liberal democracy depends on institutions. And it depends on those institutions behaving in predictable ways laid out in predetermined rules. As Breyer writes in his new book, “Under the law, what is sauce for the goose is sauce for the gander; and the same is true of the public’s willingness to accept judicial decisions with which it disagrees. The rule of law is not a meal that can be ordered à la carte.”

But Marshall’s lesson to Kagan also revealed a weakness at the heart of liberal democracy. Imagine, for example, a white supremacist whose goal is to maintain segregation and whites-only rule in the Jim Crow South. One way to achieve this is to subvert the rule of law in its entirety — tear down institutions that might allow Black people to achieve political power.

The other way to maintain a white supremacist state is to work within the system: Write a constitution that prohibits Black people from voting. Elect racist judges who will interpret the law to maintain white rule. Craft procedural rules that, while perhaps neutral on their face, are designed to deny legal relief to disfavored groups. Appoint Supreme Court justices who will strike down federal civil rights laws intended to frustrate white supremacy.

Liberals, in other words, must constantly fight a two-front war. They have to prop up institutions that can be captured and used against liberal democracy while also working within the system to control those institutions. Opponents of liberal democracy, meanwhile, can prevail either by capturing those institutions or by tearing them down. In the state of nature, the strong man always wins.

Breyer appears to be betting that the danger of diminished public confidence in one specific institution — the judiciary — outweighs the danger of letting that institution be captured by Trumpy Republicans. I think he’s wrong about that. But he’s absolutely right to warn liberals against being too quick to weaken institutions that liberalism depends upon.

Why does Breyer fear a weaker Supreme Court?

Breyer’s book appears motivated by his opposition to left-leaning calls for Supreme Court reform, but it also lays out a much broader theory of the courts’ role in a liberal democracy — and of how courts gain the public credibility they need to perform that role.

The justice recounts a long history that includes some early low points, such as President Andrew Jackson’s refusal to obey an 1832 decision protecting the rights of Cherokees (Jackson eventually sent federal troops to force the Cherokee people to relocate to Oklahoma, along what is now known as the Trail of Tears).

As our nation matured, in Breyer’s account, the public developed more respect for the Court, and presidents grew more inclined to honor its decisions. President Harry Truman’s decision to follow a wartime opinion preventing him from seizing control of privately owned steel mills is a high point in Breyer’s narrative.

Much of Breyer’s portrait of history is debatable. He paints the eventual failure of the Jim Crow South’s massive resistance to Brown v. Board of Education as a triumph for the Court. But the decision in Brown accomplished very little in the deep South until Congress took aim at segregation with the Civil Rights Act of 1964. On the eve of that law’s passage a decade after Brown, only one in 85 Southern Black children attended a desegregated school.

Breyer also offers some unexpected praise for Bush v. Gore (2000), or at least for the aftermath of that decision. Using highly dubious legal reasoning, Bush effectively awarded the presidency to George W. Bush. Breyer was one of four dissenters in the case.

Yet, as Breyer notes, “Despite the huge stakes involved, despite the belief of half the country that the Court was misguided, Americans accepted the majority’s holding without violent protest.” Former Vice President Al Gore, who many still believe rightfully won the 2000 election, told his supporters not to “trash the Supreme Court.” At the time of Bush, Breyer writes, “acceptance of the Court’s decisions, respect for those decisions even when one considers them wrong, had become virtually habitual.”

In Breyer’s mind, this respect for judicial decisions — even in wrongly decided cases — appears to be an unalloyed good. Over time, he writes, “The American people … gradually adopted the custom and habit of respecting the rule of law, even when the ‘law’ included judicial decisions with which they strongly disagreed,” and the Supreme Court “gradually expanded its authority to protect an individual’s basic constitutional rights, even during a time of war.”

To Breyer, an occasional bad decision, even a hugely consequential one like that in Bush, is a small price to pay for maintaining an institution that can prevent elected officials from trampling our constitutional rights.

But what happens if the Court becomes hostile to these very same rights? What happens, for example, if decisions such as Bush become routine, and the Court frequently intervenes in elections to install candidates who belong to the same political party as a majority of the justices? What happens if the Supreme Court dismantles what remains of the Voting Rights Act (it’s already destroyed most of it), thereby opening the door to Jim Crow voter suppression in the process? What happens if the Court forbids state supreme courts or Democratic governors from blocking Republican-drawn gerrymanders, something four justices have already signaled they may be willing to do?

The most troubling provision of Georgia’s new voting law permits the state’s Republican-controlled legislature to effectively seize control of local election boards, which have the power to disqualify voters and close polling places. What happens if Georgia Republicans shut down half the precincts in the Democratic stronghold of Atlanta, and the Supreme Court does nothing as tens of thousands of Democratic voters give up in frustration rather than wait in hours-long lines to cast a ballot?

I asked Breyer a version of these questions at a lecture he delivered at Harvard Law School in April (Breyer’s book is derived from this lecture, and Harvard allowed members of the public to submit questions to the justice).

“Should we accept the proposition that public acceptance of judicial decisions is a per se good?” I asked Breyer. I provided a few examples of cases where it might be appropriate to resist the decision, such as if the Supreme Court “so dismantles our voting rights that we cease to have a meaningful ability to elect a government that is not led by the same political party [as] controls the Supreme Court.”

Breyer’s response to my question was twofold. The first was a warning about what can happen should the public turn away from accepting judicial decisions. “Go turn on the television set,” he warned, “and go look at what happens in countries that try to do without” a rule of law grounded in deference to judicial rulings.

Then he seemed to admit there may be circumstances where such deference should be abandoned, though only if those circumstances were truly extraordinary. “What about Hitler?” Breyer asked rhetorically, before denying that anyone currently on the Court reaches that bar — “We don’t have Hitler.”

No serious person would claim that, say, Brett Kavanaugh or Amy Coney Barrett is the moral equivalent of a Nazi. But Breyer is either asking us to accept a Supreme Court that could entrench the Republican Party’s power, or denying we have such a Court right now.

If the former is true, he should explain why the “rule of law” is worth maintaining if the people have no control over who writes the laws. If he’s claiming the latter, well, I hope he’s correct. But, should he allow his seat on the Supreme Court to be filled by another Clarence Thomas or Neil Gorsuch, both of whom have called for extraordinary new constraints on voting rights, he may not remain correct for very long.

Who’s to blame?

I will confess that one reason I find Breyer’s new book so frustrating is because he deflects arguments that the judiciary should be blamed for public perception of partisanship and instead places some of the blame on, well, me, among others.

“We have seen a gradual change in the way the media, along with other institutions that comment upon the law, understand and represent the judicial institution,” Breyer writes in one section attempting to explain why his vision of the “rule of law” is under threat. “Several decades ago, few if any of these reporters and commentators, when reporting a decision, would have mentioned the name or political party of the president who had nominated a judge to office. Today the media do so as a matter of course.”

It’s not entirely clear whether Breyer is correct about how the press used to cover the Court, at least when it comes to politically charged cases. The day after Roe v. Wade (1973) was decided, for example, the New York Times noted President Richard Nixon’s opposition to “liberalized abortion policies,” before adding that “three of the four Justices Mr. Nixon has appointed to the Supreme Court voted with the majority.”

Similarly, although Breyer criticizes journalists who “systematically label judges as conservative or liberal,” the Times also described a landmark 1937 decision ending the Court’s resistance to the New Deal as significant, in part because five justices joined together to “make the new ‘liberal’ majority of the Supreme Court.”

I cannot speak to why many modern-day Supreme Court reporters tend to refer to judges by noting who appointed them, what party they belong to, or whether they are “liberal” or “conservative.” But I can speak for myself. I do so because it is my job to describe the Supreme Court as accurately as I can, and I believe the most accurate way to do that is to present the justices as people whose politics and ideologies matter.

I agree with Senate Minority Leader Mitch McConnell, for example, that it matters a great deal whether Obama nominee Merrick Garland or Trump nominee Neil Gorsuch sits on the Supreme Court. I also agree with Republicans that Trump nominee Amy Coney Barrett’s appointment to the Court makes it likelier to issue decisions favoring the GOP than if Biden had filled the vacancy opened up by Justice Ruth Bader Ginsburg’s death.

I believe Republicans correctly identified Gorsuch and Barrett as judges likely to reach conservative conclusions in future decisions. I believe Republicans also correctly identified Garland as someone likely to reach liberal decisions in future cases. I believe Republicans were also correct that anyone Biden nominated would be significantly more liberal than Barrett.

And, just in case this isn’t already clear, I also believe it matters a great deal whether Breyer is replaced by a Democrat or a Republican.

To be fair, Breyer doesn’t really try to defend the indefensible claim that Gorsuch does not take a “conservative” approach in the sort of politically charged cases that divide the Court, or that Ginsburg was not “liberal.” Instead, he absolves his colleagues by arguing that they act entirely in good faith: “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,” he writes.

There’s no reason to doubt the good faith of someone like Gorsuch, who I believe honestly thinks he is applying “the law” when handing down decisions that align with the Republican Party’s preferred outcome in a particular case.

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But, as University of Michigan Law School professor Julian Davis Mortenson said on Twitter, “‘Doing law’ as you understand it can involve using a methodology that produces predictably skewed policy results,” as well as “drawing on ‘what makes sense here’ intuitions that stem from your policy commitments, maybe even without you realizing it.”

The thing about Supreme Court justices is they are chosen by partisan presidents, typically from a pool of sitting judges with long records reflecting their tendencies to reach liberal results, conservative results, or some mix of the two. Presidents, in other words, do not need to search for partisan hacks to find nominees who are likely to decide cases in ways they will like. They just have to find nominees with demonstrated records of reaching decisions — all while acting entirely in good faith — the president’s party agrees with.

All of that said, it is true modern-day presidents tend to do a better job of identifying justices who share their ideology compared with presidents from even a few decades ago. When the Steel Seizure case Breyer praises reached the Supreme Court, all nine justices had been appointed by either Truman or Franklin Roosevelt, both Democrats. Yet six of those justices voted against Truman’s position. Three Nixon appointees broke with him on abortion. When the Supreme Court decided to stop sabotaging the New Deal, four of the five justices in the majority had been appointed by Republican presidents.

Indeed, as recently as 2009, the Court had two Republican appointees — Justice John Paul Stevens and Justice David Souter — who typically voted with the Court’s two Democratic nominees in highly charged cases. (Stevens and Souter dissented in Bush v. Gore, for example.)

But something significant changed in 2010, when Stevens retired and was replaced by Kagan. For the first time in US history, the Court had a coherent bloc of five conservative justices who were all nominated by one party, and a bloc of liberal justices who were all appointed by the other. Today the Court has a 6-3 conservative majority, but the same partisan pattern still stands.

So if journalists are likelier to refer to justices in partisan terms than they were a few decades ago, that’s probably because the Court is quite literally more partisan today than ever before.

Depoliticizing the Court — and restoring democratic norms — will not be easy, and it may not be possible

One of the most influential books of the early Trump years was Steven Levitsky and Daniel Ziblatt’s How Democracies Die.

When modern democracies fail, the two Harvard professors write, they typically fail without the drama of a military coup or successful putsch. Instead, they “die at the hands not of generals but of elected leaders … who subvert the very process that brought them to power.” Often, this process happens “slowly, in barely visible steps.”

Steps such as the Supreme Court striking down much of the Voting Rights Act, paving the way for states to enact voter suppression laws that the Court then upholds.

One warning sign that a democracy is in trouble is when leaders start to abandon informal norms that aren’t written into any law, but are no less essential to liberal society than the rule of law or individual rights. “Two basic norms [that] have preserved America’s checks and balances in ways we have come to take for granted,” Levitsky and Ziblatt write, are “mutual toleration, or the understanding that competing parties accept one another as legitimate rivals, and forbearance, or the idea that politicians should exercise restraint in deploying their institutional prerogatives.”

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A president shows mutual toleration when they peacefully cede power after losing an election. A lawmaker shows mutual toleration when they accept the result of this election and do not try to overturn it. Citizens show mutual toleration when they peacefully accept their leader has lost without taking violent steps to restore them to power.

Similarly, senators exercise forbearance when they follow the ordinary process for confirming a president’s judicial nominees, even if that president belongs to the opposite party. Justices exercise forbearance when they respect and continue to apply legal precedents, even those they disagree with.

American democracy, in other words, is in deep trouble. Republicans at all levels have abandoned the norms of mutual toleration and forbearance, which, according to Levitsky and Ziblatt, are the glue that has kept our democracy together.

The most charitable reading of Breyer’s decision to scold his fellow liberals at a time when American democracy is endangered by conservatives is that he wants to preserve the very norms Levitsky and Ziblatt praise as essential to maintain a democracy. Though Republicans didn’t show forbearance by giving Merrick Garland a confirmation hearing and a floor vote, Democrats can show forbearance in not retaliating by adding seats to the Supreme Court.

But there’s no norm against judges announcing their retirement when a president of their own party is in office — just ask former Justice Anthony Kennedy. And to the extent Breyer hopes to pressure his party into honoring norms the opposing party rejects, he’s probably fighting a losing battle.

In a 2018 interview with the Washington Post’s Matt O’Brien, Ziblatt warned that once a major political party abandons norms such as forbearance and mutual toleration, a death spiral may be inevitable. In every country he’s studied, Ziblatt told O’Brien, ”No matter how long the [norm-respecting party] holds out, they will eventually respond tit for tat.” Ziblatt also said he “[couldn’t] think of” any nation that has broken this cycle.

This suggests that if American democracy is to survive, Americans who believe in it need to write a playbook no one else has succeeded in creating. It means we have to make devilish choices about when to preserve institutions and when to weaken institutions that turn against democracy. And it means we have to make these choices despite internal dissent among liberals about which path to take.