The supreme delusions of Stephen Breyer | The New Republic


Breyer is clearest on one point of paramount importance: that it would be appalling to abandon the line between politics and law anywhere, and that those who call for the political reform of a political institution are dangerous. The “very nuanced” reality of judicial policy, writes justice, is at odds with the impression of “politicians in gowns” that the public has recently received, both from less gullible journalists and from political reformers. This impression, Breyer continues, is a source of enormous danger, as it predictably undermines both “confidence in the courts and in the rule of law itself”. In short, while it is not entirely clear why constitutional judgments should be considered apolitical, it is essential that the people believe they are. Obviously, Breyer read his Plato.

In the last part of his book, Breyer concludes by outlining measures which he believes could stop the current “trust attrition”. Among them are familiar calls for public education, teaching children “what the rule of law is” and how, since “the time of King John”, it has offered protection against the tyranny of government. (He says less about the degree of “tyranny” that the law has always protected and still does.) Breyer also implores his colleagues to exercise their authority with appropriate modesty. They should never “seek or hope for popularity” and should exhibit virtues such as “clarity” and “compromise”. Finally, Breyer urges his fellow judges to adhere to a philosophy of judicial “minimalism”, articulated “carefully” by Harvard jurist Cass Sunstein (thanked in acknowledgments of the book). Among other things, this minimalist approach to judgment involves adjudicating cases on “more narrow” grounds (legal as opposed to constitutional, for example) and, Breyer suggests, sometimes having to “swallow” dissenting opinions to create the impression. greater judicial unanimity.

More importantly, Breyer concludes, we must not succumb to calls for “structural” reform of the court. Breyer specifically cautions against the “temptation” to race the courts. The addition of judges to the court, concedes Breyer, would offer a political victory “in the short term”. The damage to the institution would, however, be “serious”, suggesting to the public that the court’s decisions were guided less by “legal principle” than by “policy”. Beyond the addition of judges, calls for elected officials to exercise control over the composition or authority of the court can only “fuel” the perception of “political influence” among judges, ” further tainting public trust, “a trust” without which our system cannot function. . “


Surprisingly for his official agenda, Breyer therefore comes extremely close to admitting that the Supreme Court is in fact a political institution. While much of the book is devoted to contrasting the subtle reality of judicial decision-making with the crass portrayal that increasingly dominates popular discourse, the subtleties to which Breyer draws our attention are mostly fallacy, as Breyer more or less concedes. While the nine judges presiding over cases of indeterminacy and “jurisprudential” commitments indistinguishable from ideological commitments fill in the voids, their votes in an alarming number of cases substitute for the authority of the people to vote on politicians. who, in turn, vote on legislation.


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