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The Authority of the Court and the Peril of Politics
A sitting justice reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.
A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions.
Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity.
Breyer warns that political intervention could itself further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.
A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions.
Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity.
Breyer warns that political intervention could itself further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.
101 pages, Hardcover
First published September 7, 2021
124 people are currently reading
690 people want to read
About the author
Stephen Breyer
22 books38 followersStephen Gerald Breyer is an American lawyer and jurist who has served as an associate justice of the Supreme Court of the United States since 1994. He was nominated by President Bill Clinton, and replaced retiring justice Harry Blackmun. Breyer is generally associated with the liberal wing of the Court.
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Displaying 1 - 30 of 104 reviews
September 24, 2025
'Blazed' through the rest of this book when I heard he was retiring: very nice 'basic' theory of the connection between pragmatism and political views. Here are the problems I had with his argument: pragmatic effects and the way 'truth' is connected to such events have epistemic problems when it comes to us saying 'it is good because it works' (Bertrand Russell) - the causation of said events is inextricably linked - the cart can never 'pull' the horse - and the more 'loaded' the cart becomes the less chance it can be 'moved' at all. Ultimately one must ask 'what constitutes usefulness in context to what is good' - but so often (politically) we ask 'what constitutes good in context to what is useful' - cart overturned. Although I respect and admire Justice Breyer I believe this is a 'gateway' book to deeper arguments and should be read contextually so. Thanks for staying with me - now I do not feel guilty spending the rest of the afternoon reading comic books!
January 1, 2022
I initially wrote a measured, calm review outlining the failures of this book, but the more I think about it, the more agitated I become. It’s 2022! I don’t have patience for this. In this book, sitting Supreme Court Justice Breyer asks readers to forget everything we know about the insane political unraveling & democratic backsliding of the last decade and to simply let “Jesus (the Supreme Court) Take the Wheel.” It is not only insulting to read this book-length embodiment of a finger wagging — it is frightening, as the the book represents a frankly dangerous complacency from one of the most powerful people in the United States at a moment of absolute crisis.
The central premise of this brief book is that the Supreme Court a) should be fully trusted by the American public and b) should not be reformed in any way, as doing so might politicize the Court and thereby jeopardize the rule of law. It is remarkably unpersuasive. Breyer diligently avoids acknowledging the hostile politicization of the Court that has already occurred, and it is unnerving to read. It makes me substantially less confident in Breyer’s judgement and in the Court.
Nowhere in this 100-page volume will you find a single mention of the Federalist Sociery, nor of the names Mitch McConnell, Merrick Garland, Chuck Grassley, Brett Kavanaugh, Amy Coney Barrett, or Neil Gorsuch. Nowhere a mention of how the GOP effectively changed the number of seats on the Court for more than a year by refusing to allow President Obama to make an appointment. Nowhere a mention of Brett Kavanaugh’s traumatic, loathsome conduct during his confirmation hearings. Nowhere a mention of Amy Coney Barrett’s rushed elevation to the court after millions of Americans had already cast a ballot. Nowhere a mention of Mitch McConnell deliberately preventing hearings for scores of Obama nominees to various federal courts, paving the way for Trump to walk into office with unprecedented vacancies and to promptly fill them with manifestly unqualified ideologues. Breyer completely ignores the long, out-loud, in-full-view campaign by the GOP to pack and weaponize federal courts. It doesn’t even rate a single direct mention — in a book-length treatment about the “perils of politics” for the Supreme Court! The myopia required to not even address this is galling.
Instead, this book exists to preemptively chastise anyone who endeavors to consider what options there are to respond to (and deescalate) conservative assaults on the Court’s composition and legitimacy.
Breyer repeatedly betrays the fact that he does not at all understand what harm has already been done to the public perception (and thus, the legitimacy) of the Supreme Court. Everywhere, Breyer warns against “potential difficulties that may arise in the future” (2). He warns that “if the public comes to see judges as merely politicians in robes, it’s confidence in the courts, and in the rule of law itself, can only decline” (63). He chastises that “structural alteration of the Court motivated by the perception of political influence among justices can only feed that same perception, further eroding the public’s trust” (100). “Potential.” “May.” “If.” “Perception of political influence.” He writes tabula rasa, as though debates about creating a term-based system for Supreme Court Justices or adding seats are power grabs emerging from a vacuum. Is he being disingenuous, and scolding people who question the Court’s direction because he values institutionalism over all else? Or is he really so far out of touch that he does not see the corruption of the Court’s legitimacy that has already happened? I’m not sure which would be worse.
As Breyer waxes on and on about prizing the Rule of Law, also absent from the book is any mention of Republicans’ concurrent severe attacks on voting rights, campaigns to discredit fair and free elections in the United States, efforts to stop history from being taught in schools, and their fomenting of a literal violent insurrection against the United States. The weaponization of the Supreme Court is part of this same political movement, as described by its own leaders and participants. Did Breyer like, not have a good enough view on January 6, 2021, when he watched through his office window as the U.S. Capitol Building went up in clouds of smoke and tear gas across the street? The precious “rule of law” seems to be in an increasingly precarious position, and obedience to the law of course has nothing to do with the more important questions of justice. It’s just insane that in the same calendar year as the January 6 Insurrection, Breyer would think “what we really need is a book scolding people for being concerned about the future of our government, and instead encouraging them to defer completely to undemocratic sources of authority.”
But what’s worse is that Breyer’s actual intent in publishing the book in 2021 seems thinly veiled. It reads as a roundabout attempt at justifying his decision not to retire before the 2022 midterm elections. Though his own retirement is not directly commented upon in the book, the logics presented suggest that (by not timing his retirement around Biden’s narrow open window to appoint his replacement) he hopes to make a principled stand to break the cycle of Supreme Court Justices being viewed as political actors. The Retirement Question has clearly been close to the center of all the press Breyer has done around the book. But short of any Court reforms (which he argues against), the next 11 months may be his last chance to retire in a way that preserves the paltry 6-3 balance of the Court. Should he retire after 2022 and Republicans gain a net of one seat in the Senate, McConnell will become Senate Majority Leader and will not allow a replacement to be nominated (which should come as no surprise to anybody since he has done it before). Should Republicans win the White House in 2024, then we can say hello to a 7-2 Court. Goodbye to abortion. Goodbye to marriage equality. Goodbye to voting rights. Goodbye to much more besides. It’s just absolutely inane to be admonished by a man whose misplaced commitment to having no political analysis will end up risking so many of the rest of our rights. Not in 2022, thanks!
Ultimately, the book reads as an unconvincing plea for deference. “The 329 million Americans who are not lawyers or judges must understand the need to maintain [the habit of settling differences through the courts], and they must accept it” (92). If that’s the best he can do, it makes me feel like we’re really in trouble.
The central premise of this brief book is that the Supreme Court a) should be fully trusted by the American public and b) should not be reformed in any way, as doing so might politicize the Court and thereby jeopardize the rule of law. It is remarkably unpersuasive. Breyer diligently avoids acknowledging the hostile politicization of the Court that has already occurred, and it is unnerving to read. It makes me substantially less confident in Breyer’s judgement and in the Court.
Nowhere in this 100-page volume will you find a single mention of the Federalist Sociery, nor of the names Mitch McConnell, Merrick Garland, Chuck Grassley, Brett Kavanaugh, Amy Coney Barrett, or Neil Gorsuch. Nowhere a mention of how the GOP effectively changed the number of seats on the Court for more than a year by refusing to allow President Obama to make an appointment. Nowhere a mention of Brett Kavanaugh’s traumatic, loathsome conduct during his confirmation hearings. Nowhere a mention of Amy Coney Barrett’s rushed elevation to the court after millions of Americans had already cast a ballot. Nowhere a mention of Mitch McConnell deliberately preventing hearings for scores of Obama nominees to various federal courts, paving the way for Trump to walk into office with unprecedented vacancies and to promptly fill them with manifestly unqualified ideologues. Breyer completely ignores the long, out-loud, in-full-view campaign by the GOP to pack and weaponize federal courts. It doesn’t even rate a single direct mention — in a book-length treatment about the “perils of politics” for the Supreme Court! The myopia required to not even address this is galling.
Instead, this book exists to preemptively chastise anyone who endeavors to consider what options there are to respond to (and deescalate) conservative assaults on the Court’s composition and legitimacy.
Breyer repeatedly betrays the fact that he does not at all understand what harm has already been done to the public perception (and thus, the legitimacy) of the Supreme Court. Everywhere, Breyer warns against “potential difficulties that may arise in the future” (2). He warns that “if the public comes to see judges as merely politicians in robes, it’s confidence in the courts, and in the rule of law itself, can only decline” (63). He chastises that “structural alteration of the Court motivated by the perception of political influence among justices can only feed that same perception, further eroding the public’s trust” (100). “Potential.” “May.” “If.” “Perception of political influence.” He writes tabula rasa, as though debates about creating a term-based system for Supreme Court Justices or adding seats are power grabs emerging from a vacuum. Is he being disingenuous, and scolding people who question the Court’s direction because he values institutionalism over all else? Or is he really so far out of touch that he does not see the corruption of the Court’s legitimacy that has already happened? I’m not sure which would be worse.
As Breyer waxes on and on about prizing the Rule of Law, also absent from the book is any mention of Republicans’ concurrent severe attacks on voting rights, campaigns to discredit fair and free elections in the United States, efforts to stop history from being taught in schools, and their fomenting of a literal violent insurrection against the United States. The weaponization of the Supreme Court is part of this same political movement, as described by its own leaders and participants. Did Breyer like, not have a good enough view on January 6, 2021, when he watched through his office window as the U.S. Capitol Building went up in clouds of smoke and tear gas across the street? The precious “rule of law” seems to be in an increasingly precarious position, and obedience to the law of course has nothing to do with the more important questions of justice. It’s just insane that in the same calendar year as the January 6 Insurrection, Breyer would think “what we really need is a book scolding people for being concerned about the future of our government, and instead encouraging them to defer completely to undemocratic sources of authority.”
But what’s worse is that Breyer’s actual intent in publishing the book in 2021 seems thinly veiled. It reads as a roundabout attempt at justifying his decision not to retire before the 2022 midterm elections. Though his own retirement is not directly commented upon in the book, the logics presented suggest that (by not timing his retirement around Biden’s narrow open window to appoint his replacement) he hopes to make a principled stand to break the cycle of Supreme Court Justices being viewed as political actors. The Retirement Question has clearly been close to the center of all the press Breyer has done around the book. But short of any Court reforms (which he argues against), the next 11 months may be his last chance to retire in a way that preserves the paltry 6-3 balance of the Court. Should he retire after 2022 and Republicans gain a net of one seat in the Senate, McConnell will become Senate Majority Leader and will not allow a replacement to be nominated (which should come as no surprise to anybody since he has done it before). Should Republicans win the White House in 2024, then we can say hello to a 7-2 Court. Goodbye to abortion. Goodbye to marriage equality. Goodbye to voting rights. Goodbye to much more besides. It’s just absolutely inane to be admonished by a man whose misplaced commitment to having no political analysis will end up risking so many of the rest of our rights. Not in 2022, thanks!
Ultimately, the book reads as an unconvincing plea for deference. “The 329 million Americans who are not lawyers or judges must understand the need to maintain [the habit of settling differences through the courts], and they must accept it” (92). If that’s the best he can do, it makes me feel like we’re really in trouble.
November 12, 2021
The Justice is candid and persuasive. As human beings we each vary in how and why we think as we do. He does not deny this but tries to argue that "politics" does not influence the decisions and actions of jurists. To me, he book proves the opposite. His points about listening, re-evaluating, compromising and adjusting are laudable and of paramount importance. This does not change that jurists protect themselves and their institutions, employing any number of devices, including as he revealed, deciding cases narrowly, declining to take cases, and any number of machinations with dissenting and concurring opinions. The law does require the trust of the governed. The limits the law must have for equality are directly opposed to many traditional mores. The balance between selfishness (humanity's bane) and equality is very difficult. Judges must resist selfishness and have courage in the face of inequality. As humans the result will always be a mixed bag so selecting Judges is much more important than most will recognize.
September 23, 2021
2.5
This book had a really good idea behind it: Why do we let the Supreme Court do that? I didn't know, I still don't know.
As one of the few (6-3 split) Supreme Court justices I would read a book written by, I was disappointed. I thought this felt like Breyer mansplaining the Supreme Court, and as I listened to the audiobook, his tone felt especially condescending.
It felt as though instead of answering the question he laid out in the introduction he just talked in circles. He provided many examples, both modern and historical, and while some of them were interesting, Roosevelt trying to pack the court and Jackson being annoying come to mind, most of it just felt like a ramble surrounding the Supreme Court.
Another peeve is that most of this felt like information I could get anywhere. If I am reading a piece by a Supreme Court justice, I want insider info. He literally called out the court for being spooky and weird and then shared very little information about the actual happenings while they are in session. There was a little big of good info! Mainly about minimalism in the court in order to pass decisions, and the lack of actual camaraderie between justices.
Steve, you can do better. Answer the question! I don't care about school boards. (in this context, otherwise I think they are very important)
This book had a really good idea behind it: Why do we let the Supreme Court do that? I didn't know, I still don't know.
As one of the few (6-3 split) Supreme Court justices I would read a book written by, I was disappointed. I thought this felt like Breyer mansplaining the Supreme Court, and as I listened to the audiobook, his tone felt especially condescending.
It felt as though instead of answering the question he laid out in the introduction he just talked in circles. He provided many examples, both modern and historical, and while some of them were interesting, Roosevelt trying to pack the court and Jackson being annoying come to mind, most of it just felt like a ramble surrounding the Supreme Court.
Another peeve is that most of this felt like information I could get anywhere. If I am reading a piece by a Supreme Court justice, I want insider info. He literally called out the court for being spooky and weird and then shared very little information about the actual happenings while they are in session. There was a little big of good info! Mainly about minimalism in the court in order to pass decisions, and the lack of actual camaraderie between justices.
Steve, you can do better. Answer the question! I don't care about school boards. (in this context, otherwise I think they are very important)
October 12, 2021
Very short which is nice and I learned a lot in an efficient way. Also nice. One of the overall takeaways for me was SCOTUS actually holds less power than I thought and Breyer makes a very strong case for why the tenuous hold on the court’s current credibility and power should be protected. From the essay, I also learned more about the tragedy of the Trail of Tears and how the court failed to prevent lawmakers in Georgia from occupying the Cherokee Nation’s land. He explained how the state of Georgia ignored the court’s ruling that the Cherokee Nation held sovereign power over that territory and forced the Cherokee people to leave their land anyway, causing thousands of deaths as they traveled to Oklahoma. Breyer explained what that meant in the overall scope of the court’s power to check other branches. He raised several other examples to illustrate the evolution of court power.
May 9, 2025
لطيف ومختصر في ٧٥ صفحة تقريبًا بترجمة عمر صلاح العبد الجادر، وميزته أنه لقاضٍ في المحكمة العليا بأمريكا، ومكتوب حديثًا فشواهده كثير منها قريب الوقوع، وأورد فيه تصورًا مختصرًا عن طبيعة العمل في المحكمة العليا وكيف تُدرس القضايا، والقصص التي يحكيها مفيدة جدًا لإيصال مراده وتقرّب المقصود وهي محورية في تأريخ المحكمة العليا الأمريكية.. وغايته منه: أن يحكي كيف اكتسبت المحكمة العليا في أمريكا مكانتها وفرضت كلمتها رغم ضعف ذلك سابقًا، وكذلك يريد أن يقول إن الخلافات بين قضاتها قانونية وليس للسياسة فيها أي دخل؛ رجاءَ ألا يفقد الأمريكيون الثقة بمحكمتهم.
يعيبه أن العنوان أكبر من المحتوى، فالمفترض أن يكون عنوانه: العلاقة بين السياسة الأمريكية والمحكمة العليا بأمريكا.
أوصي به جدًا للمهتم
يعيبه أن العنوان أكبر من المحتوى، فالمفترض أن يكون عنوانه: العلاقة بين السياسة الأمريكية والمحكمة العليا بأمريكا.
أوصي به جدًا للمهتم
March 10, 2022
Justice Breyer is an excellent writer as one would expect a Supreme Court Justice to be. I was inspired to pick up this book after hearing a replay of a 2015 NPR Interview with him. They were replaying it because he had just announced his retirement from the court. The retirement of such a wise and intelligent man is a loss for the court. But change is a part of our system.
Breyer's book is short and written for the general public and focuses on the United States Supreme Court's role in the government and the work of the justices. He uses famous cases in examples like Brown v Board of Education and Bush v Gore.
Breyer notes that in a 2016 survey of adults only a quarter of them could name the 3 branches of government. He emphasizes that every citizen needs to understand how our democracy works and should participate in it. He is sorry that many schools no longer teach Civics to students because that contributes to people's lack of knowledge and understanding about the workings of government.
Breyer's book is short and written for the general public and focuses on the United States Supreme Court's role in the government and the work of the justices. He uses famous cases in examples like Brown v Board of Education and Bush v Gore.
Breyer notes that in a 2016 survey of adults only a quarter of them could name the 3 branches of government. He emphasizes that every citizen needs to understand how our democracy works and should participate in it. He is sorry that many schools no longer teach Civics to students because that contributes to people's lack of knowledge and understanding about the workings of government.
November 23, 2022
I'm a big fan of Justice Breyer but had a really tough time with his premise given recent events on the Supreme Court. How does his argument square with a sitting justice releasing one, possibly two opinions that revolve around a significant political issue prior to their official publication? How does his argement square with four justices lying about precendent in their confirmation hearings? How does his argument square with some justices refusing to recuse themselves on cases in which they have conflicts of interest while other justices do recuse themselves? How does his argument square with the wife of a justice being a prime mover in the political movement to overthrow the executive branch while also being a signficant contributor to the online chat run by his own former and current law clerks? How does his argument square will all federal judges having to abide by a Code of Conduct except for the Supreme Court and that same court refusing to adopt such Code of Conduct?
I think Justice Breyer's book is really about how he wishes the current Supreme Court conducted itself but, much to the detriment of Americans, that's wishful thinking.
I think Justice Breyer's book is really about how he wishes the current Supreme Court conducted itself but, much to the detriment of Americans, that's wishful thinking.
July 7, 2022
Breyer starts with a Marburg v. Madison history of the Court (yawn). Then he continues on his old-school claims that the Court is impartial and not politically or ideologically motivated. When I was in grad school in 2004, this was already a very dubious claim. With the Conservative Court's recent destruction of long-standing precedent and human rights and threats to continue to throw out related precedents, this view has been exposed as fiction. In related news, 25% percent of Americans have confidence in the Court, in an all-time low.
Recent rulings:
1) took away electoral protections so that democracy might soon grind to a halt (states' rights to destroy democracy);
2) took away Constitutional bodily autonomy first for women, soon everyone! (states' rights to violate human rights, legal precedent is a joke);
3) blocked the ability of states to pass gun control measures during a time of increasing mass shootings and public outcry against a lack of restrictions (NO states' rights, just kidding about that legal philosophy); and
4) it's not hyperbolic to say that the recent environmental ruling stripping power from the EPA might lead to catastrophic suffering worldwide (no ability for federal representatives to LEGISLATE).
Recent rulings:
1) took away electoral protections so that democracy might soon grind to a halt (states' rights to destroy democracy);
2) took away Constitutional bodily autonomy first for women, soon everyone! (states' rights to violate human rights, legal precedent is a joke);
3) blocked the ability of states to pass gun control measures during a time of increasing mass shootings and public outcry against a lack of restrictions (NO states' rights, just kidding about that legal philosophy); and
4) it's not hyperbolic to say that the recent environmental ruling stripping power from the EPA might lead to catastrophic suffering worldwide (no ability for federal representatives to LEGISLATE).
October 5, 2021
An interesting, thought-provoking topic/premise — why do we let the court decide laws, elections, etc. The way it does? Sadly Breyer fails to answer this and overall, the book is a bit to shallow in discussion (with too much narcissism; the author talks about himself often to the point of annoyance; this isn’t a memoir.)
I did appreciate the section on minimalism (the legal kind, not the lifestyle).
Very slim “book” (more like an essay) use your library for a copy. I spent about 40 minutes reading it.
I did appreciate the section on minimalism (the legal kind, not the lifestyle).
Very slim “book” (more like an essay) use your library for a copy. I spent about 40 minutes reading it.
January 6, 2022
This lawyer who has retired from public service is starting 2022 with a review of his first read of the new year: Stephen Breyer’s very accessible and timely book on the authority of the US Supreme Court in the context of current perils to it from politics. In essence, Justice Breyer argues that the public’s confidence in the Supreme Court (indeed perhaps its legitimacy) could be endangered but that attention to the Court’s history and the pragmatic dynamics of judging (at least in the Supreme Court) are sufficient to quash this threat without outside efforts (like court packing) to control the danger virus of partisan politics on the court. Apart from whether he succeeds in that daunting goal, he has provided a good look at a rather pragmatic approach to judging and the law that attends to the concrete process of the Court and the internal practices or conventions that he deems adequate to carry the Court and its legitimacy into the future. As to his larger goal, I am less than completely persuaded that he is successful. Nonetheless, due to the current attention focused on speculation encouraging Breyer to retire so that President Biden could nominate his successor, his book merits a careful read whether or not his argument is finally persuasive.
Originally delivered as the Scalia Lectures at Harvard Law School in 2021, Breyer makes his case in relatively simple terms without jargon. First, he establishes that the Court in doing its job in relation to the executive and legislative branches of the federal government relies to a great deal on shepherding a growing confidence (I might say legitimacy) concerning the court’s role by the public as well as by presidents and Congress. He trots out Marbury v Madison and the desegregation decisions to good effect here. Next, he contends that this confidence enables the Court to act as a check on the other two branches of government as well as the States. He acknowledges the role of custom or convention here. Finally, Breyer turns to the dangers posed to this balanced system in the future by the increasing distrust of institutions by the public (unfortunately assisted by journalistic practices). While he discounts that there are really deep partisan differences among justices in terms of their differing jurisprudences, he proceeds to contend as a pragmatic institutionalist that the Court can overcome threats to its legitimacy by internally engaging in best judicial practices: do the job of judging, clarity, deliberation, compromise, and having a broader perspective. Even as he eschews structural changes to the Court, like court packing, from the outside, he calls out to citizens for greater civics education, increased participation in democracy, and participation in cooperation and compromise. Breyer hopes that these efforts will save the legitimacy of the Court going into the future by easing the hemorrhage resulting from an aggressive distrust of institutions.
Before I engage the substance of Breyer’s case, a few words about my interpretive context. Coming to a vocation, as well as a career, in public service always within a stone’s throw of a legislature, I tend to be more engaged with legislatures and somewhat critical of the judiciary. That said, perhaps surprisingly, I am not as much of a pragmatist as Breyer while I lean toward an approach of law as interpretation (see Ronald Dworkin) and legal process with more than a touch of deconstruction—-think Archibald Cox meets Roberto Unger, both of whom were at Harvard while I was in divinity school there in the early 1980s.
I do have a few observations to balance Breyer’s rather reserved optimism about current challenges to the Court’s legitimacy from our increasingly partisan national environment. First, I think that a stronger term than confidence is called for by contemporary partisanship. Legitimacy, rather than confidence, better expresses the radical depth of the challenge of viewing the courts as merely doing politics as ideological warfare by other means. More people are unwilling to accept as legitimate political outcomes, including judicial ones, where their side loses. Second, Breyer’s argument for confidence/legitimacy rests on custom or habit or convention as the courts can not compel other branches of government to recognize and comply with judicial decisions. However, our current partisan environment, even in the judiciary, is more polarized than Breyer is willing to admit. Conventions are also being overridden by the executive and legislative branches as well—as the history of judicial nominations and government by executive action over the last 50 years might illustrate. As the institution’s legitimacy is failing, perhaps stronger measures from the outside are called for rather than just circling the judicial wagons. At the least Breyer needs to bolster his case he beyond these suggestions in academic lectures.
While Justice Breyer’s brief book deserves a more nuanced and substantive review than I can briefly give it here (and from more learned legal minds than mine), it is well worth the investment of time and serious consideration by citizens, including lawyers. Or such are the musings of a retired lawyer on the day of Epiphany 2022.
February 13, 2024
first book of 2024! yay! i'm ngl i've skimmed this book before but i actually decided to read it to feign intellect and bc of recent court cases related to 1st and 4th amendments. (it's more of a 3.5 than a 3)
things i liked/found interesting:
- made me feel smart bc i knew all of the court cases he referenced
- i liked the historical references/analyses + references to scholar/philosophers (cass sunstein! and montesquieu and cicero specifically)
- liked that it gave a perspective from within the court, most of the law reviews i've read on the politicization of the court have been based on public opinion
- like that he gave recommendations on how to build up public trust
- like that he made comparisons between US courts and foreign courts
things i didn't like/wish were different:
- felt very much like a defense of a court, which makes sense, but i wish it was more critical of the court itself. specifically when he spoke about concerns abt the court becoming too politicized, he seemed to blame most of that on the media and appointment process rather than on genuine concerns. also i'm not too sure if i agree with the idea that judicial interpretation is not a form of political philosophy/ideology.
- very surface level. i understand that's probably to make it more approachable and easy to read, but i wish he dove into a modern-day analysis of the political question doctrine + "political thicket." there's a lot of interesting info about law in wartime, so i think it would be interesting to look at that too. i also think this would have been more effective if he actually explained the main forms/theories of judicial interpretation.
- toooo optimistic. granted, i am reading this from a different perspective bc this is around 2.5 years old now, but i do think the analysis of public opinion of the court is way too optimistic, which he acknowledges at the end. it makes sense because he is a pragmatist, but i definitely think some of the suggest approaches could be more realistic.
overall, interesting read with good insights. i think i am going to read "active liberty" by him soon bc i do like his writing style.
things i liked/found interesting:
- made me feel smart bc i knew all of the court cases he referenced
- i liked the historical references/analyses + references to scholar/philosophers (cass sunstein! and montesquieu and cicero specifically)
- liked that it gave a perspective from within the court, most of the law reviews i've read on the politicization of the court have been based on public opinion
- like that he gave recommendations on how to build up public trust
- like that he made comparisons between US courts and foreign courts
things i didn't like/wish were different:
- felt very much like a defense of a court, which makes sense, but i wish it was more critical of the court itself. specifically when he spoke about concerns abt the court becoming too politicized, he seemed to blame most of that on the media and appointment process rather than on genuine concerns. also i'm not too sure if i agree with the idea that judicial interpretation is not a form of political philosophy/ideology.
- very surface level. i understand that's probably to make it more approachable and easy to read, but i wish he dove into a modern-day analysis of the political question doctrine + "political thicket." there's a lot of interesting info about law in wartime, so i think it would be interesting to look at that too. i also think this would have been more effective if he actually explained the main forms/theories of judicial interpretation.
- toooo optimistic. granted, i am reading this from a different perspective bc this is around 2.5 years old now, but i do think the analysis of public opinion of the court is way too optimistic, which he acknowledges at the end. it makes sense because he is a pragmatist, but i definitely think some of the suggest approaches could be more realistic.
overall, interesting read with good insights. i think i am going to read "active liberty" by him soon bc i do like his writing style.
January 22, 2022
Justice Breyer, in his conclusion, claims to be an optimist. That's pretty evident. It requires a good bit of optimism to imagine a Court that functions apolitically, or rather, one in which "judicial philosophy is not a code word for politics." I'm an optimist too, and I wish I could get behind his argument, but 100 pages wasn't enough for him to convince me.
"A judge... might believe strongly in federalism or free markets or government regulation of business. Indeed, he or she might believe that the Constitution works well for this nation precisely because it embodies one of those basic views. Are those views jurisprudential, or are they a form of political philosophy? Hard to say. To what extent do these political or jurisprudential views shape judge's perspectives on policies at issue in particular cases? Yet harder to say."
And... that's the extent of his reasoning on the issue! The entire book attempts to prove and promote the idea that the Court should and does function via judicial, rather than political, reasoning. Hard to say? Justice Breyer is in a unique position to argue for the difference between jurisprudential and political views! He, more than almost anybody else in the country, knows how much these views shape judge's perspectives on policies! So much of the books argument rests on the answers to these hard questions, which he dismisses out of hand.
Justice Breyer wants the public to think of the Court as embodying its ideal function and place in society. I do think his book adequately explains why that's important. But he misses his mark in alleviating any concerns about the court in recent years completely. Were this book published in the aftermath of, say, Bush v. Gore, it would make more sense in the cultural context. But specific concerns about the integrity of the judiciary since 2016 are passed over, and optimism is no longer enough to defend the Court.
"A judge... might believe strongly in federalism or free markets or government regulation of business. Indeed, he or she might believe that the Constitution works well for this nation precisely because it embodies one of those basic views. Are those views jurisprudential, or are they a form of political philosophy? Hard to say. To what extent do these political or jurisprudential views shape judge's perspectives on policies at issue in particular cases? Yet harder to say."
And... that's the extent of his reasoning on the issue! The entire book attempts to prove and promote the idea that the Court should and does function via judicial, rather than political, reasoning. Hard to say? Justice Breyer is in a unique position to argue for the difference between jurisprudential and political views! He, more than almost anybody else in the country, knows how much these views shape judge's perspectives on policies! So much of the books argument rests on the answers to these hard questions, which he dismisses out of hand.
Justice Breyer wants the public to think of the Court as embodying its ideal function and place in society. I do think his book adequately explains why that's important. But he misses his mark in alleviating any concerns about the court in recent years completely. Were this book published in the aftermath of, say, Bush v. Gore, it would make more sense in the cultural context. But specific concerns about the integrity of the judiciary since 2016 are passed over, and optimism is no longer enough to defend the Court.
March 6, 2022
Justice Breyer's book is an essay about the court's duty. He examines politicization and pushes back on the idea of the court's partisanship, meticulously explaining why the United States Supreme Court must remain an apolitical branch of government. He also spends time discussing compromise and the process by which judges write opinions, and even makes comparisons with foreign courts.
As a law school graduate who recently took the bar exam, I was fascinated to read about the process that actually goes into writing an opinion (believe it or not, law schools don't spend much time on that). Breyer was very methodical in laying out his arguments. With that, this book is not for everyone -- it is a short read (just over 100 pages), but it is academic-based and it requires patience to finish. You should only go for it if you genuinely want to learn about the process, but for what it's worth, Breyer emphasizes that the book is meant for legal & non-legal professionals alike.
And yes, I read this book after he announced his retirement, although that did not affect the way I read it.
As a law school graduate who recently took the bar exam, I was fascinated to read about the process that actually goes into writing an opinion (believe it or not, law schools don't spend much time on that). Breyer was very methodical in laying out his arguments. With that, this book is not for everyone -- it is a short read (just over 100 pages), but it is academic-based and it requires patience to finish. You should only go for it if you genuinely want to learn about the process, but for what it's worth, Breyer emphasizes that the book is meant for legal & non-legal professionals alike.
And yes, I read this book after he announced his retirement, although that did not affect the way I read it.
December 14, 2021
Supreme Court justices not totally beholden to radical politics (here's lookin' at you, SS) are always worth a hearing. Here Breyer offers brief remarks on how the Supreme Court of the United States bears authority--and it is simply because the rest of the country has agreed to respect its decisions. Chief Justice of the United States John Roberts cannot send a goon squad over to 1600 Pennsylvania NW in order to enforce his holdings.
Breyer of course wants to see this continue, and an important way to do so is to stay above politics. He sees opinions and justices that are viewed as "political" often as reaching the places they do because of different judicial philosophies, not necessarily because of politics. (Now, I'd argue that these philosophies themselves are often political, but Breyer doesn't go there.) And notice I said "not necessarily"--still lookin' at you, SS.
Breyer's main purpose in writing is to head off potential Supreme Court "reforms," which he believes would increase, not decrease, the politicization of the court. It's hard to disagree with him here. He doesn't mention it, but even the most plausible of reforms, such as eighteen-year terms, staggered every two years (which would require a constitutional amendment), would do nothing but keep judicial appointments front and center nearly constantly. And everyone would still bring everything but or including the kitchen sink (or garbage disposal, more like) against certain kinds of nominees. Do we really want that circus more often.
Anyhow, a quick and thoughtful read, remarkably free of the sort of blather that sometimes fills this very same justice's opinions!
Breyer of course wants to see this continue, and an important way to do so is to stay above politics. He sees opinions and justices that are viewed as "political" often as reaching the places they do because of different judicial philosophies, not necessarily because of politics. (Now, I'd argue that these philosophies themselves are often political, but Breyer doesn't go there.) And notice I said "not necessarily"--still lookin' at you, SS.
Breyer's main purpose in writing is to head off potential Supreme Court "reforms," which he believes would increase, not decrease, the politicization of the court. It's hard to disagree with him here. He doesn't mention it, but even the most plausible of reforms, such as eighteen-year terms, staggered every two years (which would require a constitutional amendment), would do nothing but keep judicial appointments front and center nearly constantly. And everyone would still bring everything but or including the kitchen sink (or garbage disposal, more like) against certain kinds of nominees. Do we really want that circus more often.
Anyhow, a quick and thoughtful read, remarkably free of the sort of blather that sometimes fills this very same justice's opinions!
March 8, 2022
Justice Breyer's perspective is both insightful and Pollyannaish. As an ideal to live up to, I don't know what could be better. But ideals are sadly incapable of explaining the partisanship that currently pervades our court system. Justice Breyer's preferred explanations is that most decisions are made according to jurisprudence, and that only a minority are political. But the few decisions that are political are quite impactful, so I think Justice Breyer's apologist defense leaves something to be desired.
February 1, 2022
His prose is clear, understandable, and elegant. His position on the role of the Supreme Court in the triad pillars of our government is well supported. Aside: I saw him on the Late Show with Steven Colbert and the conversation was so lively, sincere, and entertaining that I bought the book the next day.
July 19, 2023
Refreshingly non-partisan and surprisingly approachable to an audience of non-lawyers.
September 23, 2021
I'm always up to read a book by a Supreme Court justice. So when I saw Stephen Breyer's new book "The Authority of the Court and the Peril of Politics", I was anxious to read it. But calling this a book is a bit of a stretch. It is a very quick read, and actually might be better called a long-form essay. Many people will be able to read the whole thing in one sitting. And, if you are a student of Supreme Court history, then you will know much of what Breyer mentions in the book. Marbury v. Madison. Brown v. Board. The Korematsu decision. All covered.
Breyer's main goal of the book is to answer the question, "How does the Supreme Court maintain its historical authority in a society that is hyper-polarized and over-politicized?" It's an interesting question, and Breyer does a good job of answering it. However, I was expecting more. At the end of the book, I thought "That's it?"
The book is okay, but it is definitely not worth the $20 that Apple is charging to read it. Save your money and read a used copy, a year from now. So many better books on the Supreme Court out there, so read one of those.
Breyer's main goal of the book is to answer the question, "How does the Supreme Court maintain its historical authority in a society that is hyper-polarized and over-politicized?" It's an interesting question, and Breyer does a good job of answering it. However, I was expecting more. At the end of the book, I thought "That's it?"
The book is okay, but it is definitely not worth the $20 that Apple is charging to read it. Save your money and read a used copy, a year from now. So many better books on the Supreme Court out there, so read one of those.
November 18, 2021
ILLUSIONS OR DELUSIONS?
This little pamphlet – because it is a pamphlet in the good old Enlightenment style in France or Europe, Catherine’s Russia included, in the 18th century, like with Voltaire and a few others – tells in its title the real stuff that you will read. It deals with the concept of authority for the Supreme Court and how it conquered it and how it can be maintained. Then it does speak of the peril of politics as if politics had to be dangerous. He does not realize that politics is the tip of an enormous iceberg which is called social ideology, social awareness, social consciousness, social struggling. It has little to do with class struggle, the old Marxist concept, but it has to do with societal questions like gender, sexuality, the control of one’s body (too often reduced to abortion, though it should be centered on contraception and preventing pregnancy, hence family planning), and a few other fundamental questions like race relations, education, the right to be informed on all subjects and to be able to access all information on all those subjects, and that is a lot more than just the famous freedom of speech. There is no freedom of speech if you do not have access to all the information around the topics you want to speak about, and that’s the real problem. Nowadays with social networks, anyone can say anything on any subject without having access to the necessary information and opinions in order to be able to build, construct, elaborate a seasoned and balanced opinion.
The peril is not in politics but the uninformed “free” expression, and it is no longer free since it is based on some emptiness vastly populated with all sorts of biases. And that makes Stephen Breyer very timid in his approach to history and he contradicts himself very easily and in depth. Page 26 he says very rightly: “Together with the president, civil rights leaders, and a great many ordinary citizens, the Court had won a major victory for constitutional law, for equality, and above all for justice itself.” The Supreme Court is following the wind of public opinion, with a delay not to look too opportunistic, but it is opportunistic. The famous Brown case of 1954 is quoted several times and the fact that it took 13 years according to Breyer, and my experience tells me 15 years since Dunn High School, North Carolina, was only integrated in September 1969, for school integration to be nearly complete and I remember the case of Charlotte, North Carolina, in 1969-70, and the problem of busing of black children, and normally white children too, so that the schools could be integrated, and the fight of white parents against it and the fight of black parents for AND AGAINST it with one negative argument: the kids had to get on the buses around 7:00 AM, and at times even earlier, instead of leaving their home at quarter to eight to be at school at 8:00 AM for their first rollcall session. And then the same long trip back home in the evening, something like two to three hours of busing a day.
The case of abortion is typical. In Texas, and a few other states, some local laws are passed that restrict abortion so much that it becomes impossible to perform it because within six weeks most women do not even know they are pregnant, and only some serious medical examination might reveal it. It happens in Texas because Texas is a strongly republican state, vastly religious, meaning here narrow-minded and traditional in their religious beliefs and practices, with a vast Hispanic population or of Latin origin, ancient or recent, hence a culture in which a family needs to have at least three children if not more so that there is little popular pressure for abortion or contraception. Read Stephen King’s latest novel, Billy Summers, and there is an episode of gang-rape against a young woman, and Billy Summers gets the famous “pill of the day after” contraceptive and the price is outrageously high, the pharmaceutical industry exploiting women who – in this case – had no say as for protection and sexual control. It was free sex for three young men who were taking their pleasure on top of her, two inside, and one on her stomach. Once again apart from the quotation page 26, I have just given, the rest of the pamphlet defends a position in which the Supreme Court is stated as having to avoid politics, popular mass movements, popular support (that is, according to Stephen Breyer, in no way a requirement for the Supreme Court), etc.
Just a few remarks now.
The authority of the Court is based for him on the popular trust in the Court’s decisions. He forgets there must be some popular consensus on at least some important decisions for this trust to exist. And he should definitely reject the fact that people “support” even wrong decisions. That is absurd. And yet he is right: the political stakes are not supposed to be solved in the Supreme Court, but in society, hence in the various legislatures or Congress, and people who are against these political decisions or procedures can sue. The point is that THERE IS NO APPEAL POSSIBLE with Supreme Court decisions. The only possible appeal is a mass movement that may find its realization in elections. And yet: contradiction again when he says: “… the political question doctrine. That doctrine interpreted the Constitution as prohibiting the Court from intervening in matters that were overtly political in nature.” (page 39) So the Supreme Court refused to have an opinion on the new abortion law of Texas, abandoning the people to the only possible political solution: mass movement (#METOO and Black Lives Matter) and elections with the risk of violence in the first case and the risk of chaos in the second case. That is the narrow understanding, and I should say the narrow-minded understanding, of “political.”
Cicero’s reference is absurd on page 40 because Cicero was writing in the Roman empire for the Roman system based on majority slavery and extremely limited citizenship. What’s more “In time of war, the laws fall silent” is in itself absurd. War is a dictatorship by definition then. That was the way some presidents dealt with the Vietnam war: stop protesting, and when they did not stop, then the National Guard was sent in like on a certain Kent State Campus and the shootings there? You could have a film on the subject but no real protest, and even so, some films were not liked very much, like “Zabriskie Point” which was probably licensed only because it was showing the blood-orientation of some of these student protesters. We could speak of “Hair” that was so nicely polite, soft, weak, etc. No violence, please. We could speak of “Fritz the Cat” and many others. The Black Panthers can always be in “Guess who is coming to dinner” but not in the streets please, like the Black Panthers in Chicago and the repression of their movement before and during the Democratic Convention in 1968.
The allusion of the obedient George W. Bush page 43 forgets to speak of Guantanamo, this illegal detention center that could only be in Cuba because it would have been closed within two weeks, maybe two hours, if it had opened on US soil per se. Obedient to the Supreme Court, but also practicing illegal and unlawful action that is still going on, even if it petered out fast in Poland, but do we know all the places where US Armed Forces illegally detained alleged terrorists without any protection on American bases?
But the funniest element is the way the author is trapped by his own language.
“…politics. Who elected who? … Politics in this elemental sense is not present at the Court. But what about ideology, as apart from partisanship. Are you an Adam Smith “free enterpriser”? Are you a Marxist?” (page 52)
This scandalous reduction of ideology to two extreme positions is so absurd that in the next pages and through to the end he is going to speak of “judicial philosophy” (page 53) and “jurisprudential philosophy” (page 55), and he does not see that this is ideology. He knows about it, but he covers it up as “political philosophy” (page 57) and he goes on “The Court’s overall approaches reflect to a degree the shift in political views of a majority of this nation’s citizens… that kind of change does connect jurisprudence with politics.” (page 58) But he light-heartedly rejects it with a declaration on page 59, “Judges should not, and virtually never do, pay particular attention to public opinion.” He discusses “virtually” of course, but that does not change his approach: the Supreme Court is beyond public opinion.
The last part of the pamphlet about how we can guarantee the trust in the Supreme Court be maintained in a changing world is pathetic because Stephen Breyer knows that the Supreme Court, even if delayed, will follow the general evolution of the world because it will have to accept some legal decision, some bills passed into acts that will change even the basic content of the Constitution, just the same way slavery was abolished in the constitution, and segregation was banned and voting was guaranteed in various amendments. And he knows it ran into an extended period of systematic segregation under the banner of “equal but separate” of the American apartheid. And I will not be ironical about the famous prohibition amendment and the getting rid of it. And I will not be ironical either on the way it legalized same-sex unions and marriages by using the 14th amendment that was devised to guarantee the equality of black ex-slaves. And since then, this 14th amendment has been used for any sort of situation in the name of “equal protection” and he forgets to say the intention behind it originally and how for maybe 90 or 100 years, at least, it was swept under the carpet in the oval office and in all white dining rooms. How many white voting equality activists were killed in Alabama before a real police at first and legal then action was started from Washington DC? Did Rosa Parks wait for the Supreme Court to finally move their minds – and when I say mind, I mean some other body part – on the subject of bus segregation, etc. They can always say no one asked them to rule on a case that was mis-tried by some lower federal courts. Sure enough, but that shows how difficult it is to move this court along with a globalized changing world.
I will conclude with his remark on the freedom of religion, which should be corrected today as the “freedom of conscience” because those who do not believe in, God and are not affiliated with any clerical organization are becoming an exceptionally large section of our societies. In 2021 for the first time, 50% of the French population did not refer to themselves as being attached to any clerical organization. But what he says is profoundly serious: “You are free to practice your religion and teach it to your children, and I am free to do the same.” (page 88) For a judge, his sentence is bizarre because it is ambiguous. You can argue about it but that’s just the point. The last section of the sentence “I am free to do the same” may mean “I am free to teach my religion to your children” as well as I am free to teach my religion to my children.” Sorry Mister Judge, but that’s the normal way English works and you know about it because legal acts have to be written in non-ambiguous terms, and even so at times a simple comma can become the source of a century-long debate. Such a problem reveals some sloppiness we would not let our students go free with. We would correct and eventually penalize the student. So, mind you, what about a judge?
Dr. Jacques COULARDEAU
This little pamphlet – because it is a pamphlet in the good old Enlightenment style in France or Europe, Catherine’s Russia included, in the 18th century, like with Voltaire and a few others – tells in its title the real stuff that you will read. It deals with the concept of authority for the Supreme Court and how it conquered it and how it can be maintained. Then it does speak of the peril of politics as if politics had to be dangerous. He does not realize that politics is the tip of an enormous iceberg which is called social ideology, social awareness, social consciousness, social struggling. It has little to do with class struggle, the old Marxist concept, but it has to do with societal questions like gender, sexuality, the control of one’s body (too often reduced to abortion, though it should be centered on contraception and preventing pregnancy, hence family planning), and a few other fundamental questions like race relations, education, the right to be informed on all subjects and to be able to access all information on all those subjects, and that is a lot more than just the famous freedom of speech. There is no freedom of speech if you do not have access to all the information around the topics you want to speak about, and that’s the real problem. Nowadays with social networks, anyone can say anything on any subject without having access to the necessary information and opinions in order to be able to build, construct, elaborate a seasoned and balanced opinion.
The peril is not in politics but the uninformed “free” expression, and it is no longer free since it is based on some emptiness vastly populated with all sorts of biases. And that makes Stephen Breyer very timid in his approach to history and he contradicts himself very easily and in depth. Page 26 he says very rightly: “Together with the president, civil rights leaders, and a great many ordinary citizens, the Court had won a major victory for constitutional law, for equality, and above all for justice itself.” The Supreme Court is following the wind of public opinion, with a delay not to look too opportunistic, but it is opportunistic. The famous Brown case of 1954 is quoted several times and the fact that it took 13 years according to Breyer, and my experience tells me 15 years since Dunn High School, North Carolina, was only integrated in September 1969, for school integration to be nearly complete and I remember the case of Charlotte, North Carolina, in 1969-70, and the problem of busing of black children, and normally white children too, so that the schools could be integrated, and the fight of white parents against it and the fight of black parents for AND AGAINST it with one negative argument: the kids had to get on the buses around 7:00 AM, and at times even earlier, instead of leaving their home at quarter to eight to be at school at 8:00 AM for their first rollcall session. And then the same long trip back home in the evening, something like two to three hours of busing a day.
The case of abortion is typical. In Texas, and a few other states, some local laws are passed that restrict abortion so much that it becomes impossible to perform it because within six weeks most women do not even know they are pregnant, and only some serious medical examination might reveal it. It happens in Texas because Texas is a strongly republican state, vastly religious, meaning here narrow-minded and traditional in their religious beliefs and practices, with a vast Hispanic population or of Latin origin, ancient or recent, hence a culture in which a family needs to have at least three children if not more so that there is little popular pressure for abortion or contraception. Read Stephen King’s latest novel, Billy Summers, and there is an episode of gang-rape against a young woman, and Billy Summers gets the famous “pill of the day after” contraceptive and the price is outrageously high, the pharmaceutical industry exploiting women who – in this case – had no say as for protection and sexual control. It was free sex for three young men who were taking their pleasure on top of her, two inside, and one on her stomach. Once again apart from the quotation page 26, I have just given, the rest of the pamphlet defends a position in which the Supreme Court is stated as having to avoid politics, popular mass movements, popular support (that is, according to Stephen Breyer, in no way a requirement for the Supreme Court), etc.
Just a few remarks now.
The authority of the Court is based for him on the popular trust in the Court’s decisions. He forgets there must be some popular consensus on at least some important decisions for this trust to exist. And he should definitely reject the fact that people “support” even wrong decisions. That is absurd. And yet he is right: the political stakes are not supposed to be solved in the Supreme Court, but in society, hence in the various legislatures or Congress, and people who are against these political decisions or procedures can sue. The point is that THERE IS NO APPEAL POSSIBLE with Supreme Court decisions. The only possible appeal is a mass movement that may find its realization in elections. And yet: contradiction again when he says: “… the political question doctrine. That doctrine interpreted the Constitution as prohibiting the Court from intervening in matters that were overtly political in nature.” (page 39) So the Supreme Court refused to have an opinion on the new abortion law of Texas, abandoning the people to the only possible political solution: mass movement (#METOO and Black Lives Matter) and elections with the risk of violence in the first case and the risk of chaos in the second case. That is the narrow understanding, and I should say the narrow-minded understanding, of “political.”
Cicero’s reference is absurd on page 40 because Cicero was writing in the Roman empire for the Roman system based on majority slavery and extremely limited citizenship. What’s more “In time of war, the laws fall silent” is in itself absurd. War is a dictatorship by definition then. That was the way some presidents dealt with the Vietnam war: stop protesting, and when they did not stop, then the National Guard was sent in like on a certain Kent State Campus and the shootings there? You could have a film on the subject but no real protest, and even so, some films were not liked very much, like “Zabriskie Point” which was probably licensed only because it was showing the blood-orientation of some of these student protesters. We could speak of “Hair” that was so nicely polite, soft, weak, etc. No violence, please. We could speak of “Fritz the Cat” and many others. The Black Panthers can always be in “Guess who is coming to dinner” but not in the streets please, like the Black Panthers in Chicago and the repression of their movement before and during the Democratic Convention in 1968.
The allusion of the obedient George W. Bush page 43 forgets to speak of Guantanamo, this illegal detention center that could only be in Cuba because it would have been closed within two weeks, maybe two hours, if it had opened on US soil per se. Obedient to the Supreme Court, but also practicing illegal and unlawful action that is still going on, even if it petered out fast in Poland, but do we know all the places where US Armed Forces illegally detained alleged terrorists without any protection on American bases?
But the funniest element is the way the author is trapped by his own language.
“…politics. Who elected who? … Politics in this elemental sense is not present at the Court. But what about ideology, as apart from partisanship. Are you an Adam Smith “free enterpriser”? Are you a Marxist?” (page 52)
This scandalous reduction of ideology to two extreme positions is so absurd that in the next pages and through to the end he is going to speak of “judicial philosophy” (page 53) and “jurisprudential philosophy” (page 55), and he does not see that this is ideology. He knows about it, but he covers it up as “political philosophy” (page 57) and he goes on “The Court’s overall approaches reflect to a degree the shift in political views of a majority of this nation’s citizens… that kind of change does connect jurisprudence with politics.” (page 58) But he light-heartedly rejects it with a declaration on page 59, “Judges should not, and virtually never do, pay particular attention to public opinion.” He discusses “virtually” of course, but that does not change his approach: the Supreme Court is beyond public opinion.
The last part of the pamphlet about how we can guarantee the trust in the Supreme Court be maintained in a changing world is pathetic because Stephen Breyer knows that the Supreme Court, even if delayed, will follow the general evolution of the world because it will have to accept some legal decision, some bills passed into acts that will change even the basic content of the Constitution, just the same way slavery was abolished in the constitution, and segregation was banned and voting was guaranteed in various amendments. And he knows it ran into an extended period of systematic segregation under the banner of “equal but separate” of the American apartheid. And I will not be ironical about the famous prohibition amendment and the getting rid of it. And I will not be ironical either on the way it legalized same-sex unions and marriages by using the 14th amendment that was devised to guarantee the equality of black ex-slaves. And since then, this 14th amendment has been used for any sort of situation in the name of “equal protection” and he forgets to say the intention behind it originally and how for maybe 90 or 100 years, at least, it was swept under the carpet in the oval office and in all white dining rooms. How many white voting equality activists were killed in Alabama before a real police at first and legal then action was started from Washington DC? Did Rosa Parks wait for the Supreme Court to finally move their minds – and when I say mind, I mean some other body part – on the subject of bus segregation, etc. They can always say no one asked them to rule on a case that was mis-tried by some lower federal courts. Sure enough, but that shows how difficult it is to move this court along with a globalized changing world.
I will conclude with his remark on the freedom of religion, which should be corrected today as the “freedom of conscience” because those who do not believe in, God and are not affiliated with any clerical organization are becoming an exceptionally large section of our societies. In 2021 for the first time, 50% of the French population did not refer to themselves as being attached to any clerical organization. But what he says is profoundly serious: “You are free to practice your religion and teach it to your children, and I am free to do the same.” (page 88) For a judge, his sentence is bizarre because it is ambiguous. You can argue about it but that’s just the point. The last section of the sentence “I am free to do the same” may mean “I am free to teach my religion to your children” as well as I am free to teach my religion to my children.” Sorry Mister Judge, but that’s the normal way English works and you know about it because legal acts have to be written in non-ambiguous terms, and even so at times a simple comma can become the source of a century-long debate. Such a problem reveals some sloppiness we would not let our students go free with. We would correct and eventually penalize the student. So, mind you, what about a judge?
Dr. Jacques COULARDEAU
February 8, 2022
This is a series of essays, perhaps based originally on talks/lectures given by Justice Breyer over the last few years. Taken as a whole, it offers a very readable account of how responsible judges go about their business and, more specifically, how and why Supreme Court decisions are arrived at. Not too long, not too deep, but certainly enlightening.
February 20, 2022
A good read if you’re not happy with the current composition of the Court.
October 24, 2021
This tiny book was fine, I guess.
December 9, 2024
i would describe this as TONE-DEAF, although i did read it a few years after it was published. HOWEVER it’s genuinely hard to believe that a supreme court justice could craft an argument as unconvincing as the one in this book
April 8, 2022
interesting read, Breyer discussed the basic history of the court and its intended removal from politics (cited examples about how it has done this over the years), the reason it does not have a unanimity in decisions, the excision of politics from it and how it practically implements this process. Emphasize at the end the need for civic awareness and participation. Overall, I thought it was a fairly unbiased and informative read.
July 23, 2024
Breyer gives a very thoughtful analysis of our current dilemma: how political can the United States Supreme Court become before it loses the trust of the people? Breyer asserts that that only reason American citizens accept the authority of the Court is because they believe it is acting justly and that a just government deserves obedience. If the people start to doubt that premise, we may lose the rule of law in our country. “The Court’s ability to punish or to provide rewards or benefits is limited. Its ability to act justly, at least in my view, does play a major role in obtaining the public’s respect and consequent obedience.” Breyer walks us through several instances in the past where the Court issued an opinion that either the people or the President did not respect and follow. In 1832, the Supreme Court ruled in favor of the Cherokee Nation, stating they owned their Georgia land where gold was discovered. Instead of abiding by the ruling, President Andrew Jackson sent federal troops to remove Cherokees forcibly from the land and drive them to Oklahoma on The Trail of Tears. It was not a good omen for Court authority.
Breyer goes on to analyze the Supreme Court’s role in integrating the public schools in the 1950s. “At the very least, the Court had provided a catalyst.” But Breyer notes that, following the decision in Brown v. the Board of Education, no schools in the South moved to integrate for several years. When Arkansas began to integrate, the leaders rebelled. President Eisenhower sent federal troops “for no other reason than to protect the rule of law.” The troops helped somewhat, but Arkansas ended up closing the schools and integration was further delayed. Breyer makes the point that the esteem with which the Supreme Court is held in this country is extremely critical to protecting and enforcing some of our most fundamental values. That esteem is very, very fragile. He also analyzed Bush v. Gore in 2000 where the Supreme Court shut down vote recounts and Bush was declared president. “…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, without the throwing of stones in the streets. And the losing candidate, Al Gore, told his supporters, ‘Don’t trash the Supreme Court.’” In that case, the leaders themselves modeled support for the Supreme Court, even if they personally disagreed.
The book gave me plenty to think about in the current environment; the Supreme Court is under attack from both sides in the press and among certain politicians. It is a political football to be kicked. Breyer quotes a 2019 Pew poll stating that 62% of Americans viewed the Supreme Court favorably; by 2023 the same Pew poll found that only 44% now express a favorable opinion of the court and 54% have an unfavorable view. Most alarming, Americans seem to have forgotten the role of the court as an institution of justice in society. American institutions are generally under attack in the current political environment – our courts, our elections, our universities, our government agencies. It is a sobering topic. Where are the great women and men who can help us reclaim the rule of law? Who can put our country and justice above personal interest? Justice Breyer recommends we actively seek to protect our institutions by educating people, participating in democracy, and practicing civil discourse. Respecting the rule of law means we could regain our footing as a country that agrees to disagree and is willing to put human rights, dignity, and respect above political gain.
Breyer goes on to analyze the Supreme Court’s role in integrating the public schools in the 1950s. “At the very least, the Court had provided a catalyst.” But Breyer notes that, following the decision in Brown v. the Board of Education, no schools in the South moved to integrate for several years. When Arkansas began to integrate, the leaders rebelled. President Eisenhower sent federal troops “for no other reason than to protect the rule of law.” The troops helped somewhat, but Arkansas ended up closing the schools and integration was further delayed. Breyer makes the point that the esteem with which the Supreme Court is held in this country is extremely critical to protecting and enforcing some of our most fundamental values. That esteem is very, very fragile. He also analyzed Bush v. Gore in 2000 where the Supreme Court shut down vote recounts and Bush was declared president. “…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, without the throwing of stones in the streets. And the losing candidate, Al Gore, told his supporters, ‘Don’t trash the Supreme Court.’” In that case, the leaders themselves modeled support for the Supreme Court, even if they personally disagreed.
The book gave me plenty to think about in the current environment; the Supreme Court is under attack from both sides in the press and among certain politicians. It is a political football to be kicked. Breyer quotes a 2019 Pew poll stating that 62% of Americans viewed the Supreme Court favorably; by 2023 the same Pew poll found that only 44% now express a favorable opinion of the court and 54% have an unfavorable view. Most alarming, Americans seem to have forgotten the role of the court as an institution of justice in society. American institutions are generally under attack in the current political environment – our courts, our elections, our universities, our government agencies. It is a sobering topic. Where are the great women and men who can help us reclaim the rule of law? Who can put our country and justice above personal interest? Justice Breyer recommends we actively seek to protect our institutions by educating people, participating in democracy, and practicing civil discourse. Respecting the rule of law means we could regain our footing as a country that agrees to disagree and is willing to put human rights, dignity, and respect above political gain.
January 15, 2022
Answer: Donald Trump, Donald Trump and Donald Trump
In his book Breyer tells us that “As for American adults, in 2016, only one in four could name the three branches of the federal government. ”p- 93. The title is an attempt to test myself – and making a joke. The main objective of the book is- I believe- to defend the Court as a political neutral, but judicial diverse, decision body. However, the paragraphs are like this: one may find personal opinions with each judge – and then the paragraph has a “but”—this only reflects different views on how the law / constitution- should be interpreted. To me, the arguments are not convincing.
The Court as a political institution. Breyer observes that the Court’s decisions often id divided in two, one majority and one minority. The division is almost the same. So why? Because judges have different, persistent, judicial views.
So, how could one decide whether the judicial views coincide with world views that belong to the political sphere? First, what is the political sphere? What is its feasible ranges? Second, what is the judicial sphere? And what is its feasible range? And third, how does one map the judges votes and other in-office expressions onto the different spheres?
Solutions. I would think that there are sufficient with tools to do the exercise, for example cluster analysis tools (e.g., PCA). Since I would think, in contrast to Breyer, that the judges vote reflects their political view and that their decisions are outside the judicial sphere, the hypothesis would be that yes, they are politicians. And please falsify that statement!
Breyer explicitly states that this is not an objective of his treatise. “This essay will not delve into such issuers” p. 21. But I think it does.
The book is stocked with interesting reflections. I never thought of the jury system as an educational system. “The second effort concerns participation in the public life… the possibilities for participation have declined. As school districts consolidate, the number of school boards fell from about 84.000 in 1950 to about 13,500 in 2016. The number of jury trial has declined as well ... from 40,000 to 20, 000.” pp.94-95.
The fourth branch of the federal government. The fourth branch is the Central bank, or the Fed in USA. The main objective of the Fed is to keep the economy stable but moving. A similar objective could be stated for the Court: its main objective is to keep the society’s political frame stable but allow the politics to be moved by the lawmakers and the executive branch. However, in contrast to the Central bank and its body of governors, that can’t move the economy but only repair disasters, the nine members of the Court can move the society and cause disaster.
Citations
“In such circumstances, the Court is often well-advised to keep interim decisions narrow lest it prematurely restrict the arena in which more democratic forces are at play. P 75
“.. the nature of the ultimate end that the judge or justice must seek. “ p. 86
In his book Breyer tells us that “As for American adults, in 2016, only one in four could name the three branches of the federal government. ”p- 93. The title is an attempt to test myself – and making a joke. The main objective of the book is- I believe- to defend the Court as a political neutral, but judicial diverse, decision body. However, the paragraphs are like this: one may find personal opinions with each judge – and then the paragraph has a “but”—this only reflects different views on how the law / constitution- should be interpreted. To me, the arguments are not convincing.
The Court as a political institution. Breyer observes that the Court’s decisions often id divided in two, one majority and one minority. The division is almost the same. So why? Because judges have different, persistent, judicial views.
So, how could one decide whether the judicial views coincide with world views that belong to the political sphere? First, what is the political sphere? What is its feasible ranges? Second, what is the judicial sphere? And what is its feasible range? And third, how does one map the judges votes and other in-office expressions onto the different spheres?
Solutions. I would think that there are sufficient with tools to do the exercise, for example cluster analysis tools (e.g., PCA). Since I would think, in contrast to Breyer, that the judges vote reflects their political view and that their decisions are outside the judicial sphere, the hypothesis would be that yes, they are politicians. And please falsify that statement!
Breyer explicitly states that this is not an objective of his treatise. “This essay will not delve into such issuers” p. 21. But I think it does.
The book is stocked with interesting reflections. I never thought of the jury system as an educational system. “The second effort concerns participation in the public life… the possibilities for participation have declined. As school districts consolidate, the number of school boards fell from about 84.000 in 1950 to about 13,500 in 2016. The number of jury trial has declined as well ... from 40,000 to 20, 000.” pp.94-95.
The fourth branch of the federal government. The fourth branch is the Central bank, or the Fed in USA. The main objective of the Fed is to keep the economy stable but moving. A similar objective could be stated for the Court: its main objective is to keep the society’s political frame stable but allow the politics to be moved by the lawmakers and the executive branch. However, in contrast to the Central bank and its body of governors, that can’t move the economy but only repair disasters, the nine members of the Court can move the society and cause disaster.
Citations
“In such circumstances, the Court is often well-advised to keep interim decisions narrow lest it prematurely restrict the arena in which more democratic forces are at play. P 75
“.. the nature of the ultimate end that the judge or justice must seek. “ p. 86
June 17, 2023
4/5: Pursuasive, accessible, sometimes sparse
Okay, starting out with a heads up: the Supreme Court gift shop sells signed copies of the justices' books at cost. I'm a gigantic Supreme Court dork, so if you were in the gift shop at about 245pm last Friday and you saw a wide-eyed man looking like he just fell in love, that's the reason why. Anyway, got a mint Stephen Breyer autograph out of it. Bless America. Bless gift shops.
With that being said, I could probably write a review the length of this book (which is admittedly very short) because aforementioned SCOTUS dorkiness, but here is basically the short version:
1. It's a lecture written as a book. If you're looking for 500 pages on jurisprudence, it won't be here. Thankfully, that means it's accessible and relatively easy to understand for non-lawyers like me. However, there's a few times Breyer needs to move on to another topic within a short time frame, and writes "[judicially vital question]...who's to say?" It can be a bit aggrevating sometimes because you want to hear Breyer, a Supreme Court justice...say his opinion.
2. The strongest part of the book is the first half, regarding historical challenges to the court's authority. He's very convincing in what seems to be an argument of improvement of public acceptance (however tacit) of court opinions from Marbury onward.
3. One part where he's still convincing, but not AS convincing, is the part regarding ideology in the courts. It makes sense when he notes that many decisions are unanimous, or not big ideological animals, and therefore that judges aren't inherently political. It's hard, then, to wrap this with another section on how judges do (or don't) compromise, which can occasionally feel...inherently political.
I can see that Breyer doesn't like politics in his judiciary, and lays out the reasons why...mainly that it'd erode the trust America has in the courts, and that eroding trust erodes their authority and therefore the rule of law. Which makes a ton of sense, to be honest. But the best reason may be found in one of his examples. He talks about Korematsu v. US, a top-3 awful decision in SCOTUS history, and how justices discussed the politics of arguing with the president during wartime. They, in one way or another, put politics in the courts, and it caused a dumpster fire of a decision. If there's any reason to keep politics out of the courts, it's that example right there. And Dobbs. That's another story.
Sorry, big rant, told ya I was a nerd.
Okay, starting out with a heads up: the Supreme Court gift shop sells signed copies of the justices' books at cost. I'm a gigantic Supreme Court dork, so if you were in the gift shop at about 245pm last Friday and you saw a wide-eyed man looking like he just fell in love, that's the reason why. Anyway, got a mint Stephen Breyer autograph out of it. Bless America. Bless gift shops.
With that being said, I could probably write a review the length of this book (which is admittedly very short) because aforementioned SCOTUS dorkiness, but here is basically the short version:
1. It's a lecture written as a book. If you're looking for 500 pages on jurisprudence, it won't be here. Thankfully, that means it's accessible and relatively easy to understand for non-lawyers like me. However, there's a few times Breyer needs to move on to another topic within a short time frame, and writes "[judicially vital question]...who's to say?" It can be a bit aggrevating sometimes because you want to hear Breyer, a Supreme Court justice...say his opinion.
2. The strongest part of the book is the first half, regarding historical challenges to the court's authority. He's very convincing in what seems to be an argument of improvement of public acceptance (however tacit) of court opinions from Marbury onward.
3. One part where he's still convincing, but not AS convincing, is the part regarding ideology in the courts. It makes sense when he notes that many decisions are unanimous, or not big ideological animals, and therefore that judges aren't inherently political. It's hard, then, to wrap this with another section on how judges do (or don't) compromise, which can occasionally feel...inherently political.
I can see that Breyer doesn't like politics in his judiciary, and lays out the reasons why...mainly that it'd erode the trust America has in the courts, and that eroding trust erodes their authority and therefore the rule of law. Which makes a ton of sense, to be honest. But the best reason may be found in one of his examples. He talks about Korematsu v. US, a top-3 awful decision in SCOTUS history, and how justices discussed the politics of arguing with the president during wartime. They, in one way or another, put politics in the courts, and it caused a dumpster fire of a decision. If there's any reason to keep politics out of the courts, it's that example right there. And Dobbs. That's another story.
Sorry, big rant, told ya I was a nerd.
February 25, 2022
A lot of great (and concise) reflections on the Supreme Court by Justice Breyer. The book is clearly the reflections of a judge, in that the overall conclusions were rather optimistic about the neutrality of the system. A point that is becoming increasingly polarized.
He does consistently downplay the political party selection of judges and the consistent application of liberal vs conservative viewpoints on cases deliberated. He is rather optimistic in this area which is mildly confusing to me. Perhaps his position of power and his hope for the future colors his application of neutrality to the current situation.
His point that the public needs to respect the court and its decisions as a matter of maintaining a healthy democracy is well made. Although he somewhat undermines his own hope for operation outside of bias when he discusses the Court’s choice to avoid civil rights cases for the 13 years that lapsed between Brown vs Board of Education and Loving vs. Virginia. A point that indicates the agenda of the Supreme Court (which it ideally should not have), and the inherent flaws in the current system. The issue is not that either of those decisions was wrong: but that the court was clearly angling for larger social change with which cases it was taking and which cases it was not. Perhaps this is not a flaw, but rather an important function. I did not disagree obviously with the outcome of the civil rights movement, but rather took mental pause at the Supreme Court’s role and how it played out. And obviously what that means for the future.
He does provides some basic important thoughts on the role of the public: such as democratic participation in the system and a renewal of the teaching of civics courses in our education system. Both of which are excellent points.
In the end, this is a great mini discussion on the Supreme Court. Most Americans do not have the patience or time for lengthy discussions on the nuances of law and how it is interpreted and applied. Therefore a small dose (such as this book) of looking at the system is good for everyone.
He does consistently downplay the political party selection of judges and the consistent application of liberal vs conservative viewpoints on cases deliberated. He is rather optimistic in this area which is mildly confusing to me. Perhaps his position of power and his hope for the future colors his application of neutrality to the current situation.
His point that the public needs to respect the court and its decisions as a matter of maintaining a healthy democracy is well made. Although he somewhat undermines his own hope for operation outside of bias when he discusses the Court’s choice to avoid civil rights cases for the 13 years that lapsed between Brown vs Board of Education and Loving vs. Virginia. A point that indicates the agenda of the Supreme Court (which it ideally should not have), and the inherent flaws in the current system. The issue is not that either of those decisions was wrong: but that the court was clearly angling for larger social change with which cases it was taking and which cases it was not. Perhaps this is not a flaw, but rather an important function. I did not disagree obviously with the outcome of the civil rights movement, but rather took mental pause at the Supreme Court’s role and how it played out. And obviously what that means for the future.
He does provides some basic important thoughts on the role of the public: such as democratic participation in the system and a renewal of the teaching of civics courses in our education system. Both of which are excellent points.
In the end, this is a great mini discussion on the Supreme Court. Most Americans do not have the patience or time for lengthy discussions on the nuances of law and how it is interpreted and applied. Therefore a small dose (such as this book) of looking at the system is good for everyone.
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