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NO, STEPHEN BREYER, THE SUPREME COURT IS NOT OUR FRIEND  
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Elie Mystal
April 5, 2024
The Nation
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_ The former justice is calling on Americans to emulate the civility
of Supreme Court justices, never mind the extreme harm some of those
justices are doing. _

Stephen Breyer, former associate justice of the US Supreme Court,
speaks during a discussion at the Law Library of Congress in 2022.,
Evan Vucci / AP/Bloomberg via Getty Images)

 

Earlier this week, retired Supreme Court Justice Stephen Breyer penned
an op-ed in _The New York Times _about friendship among the
court’s justices. And about collegiality. And about not letting
professional disagreements interrupt their wife-swapping during card
games.

The title of the piece is “The Supreme Court I Served On Was Made Up
of Friends
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and it pretty much went downhill from there. It’s mainly just a few
anecdotes from Grandpa Breyer about how nine people who work together
for life can enjoy each other’s company. It’s about how some of
the justices used to play bridge together, while others went to the
opera, and how they would share jokes over lunch. There’s a
particularly insipid story about the reason former Chief Justice
William Rehnquist put literal gold stripes on his robe, which Breyer
tells us was inspired by the Gilbert & Sullivan musical _Iolanthe_. I
guess that makes sense, considering _Iolanthe_ is about a fairy
queen who is going to murder everyone she loves because the law says
that fairies who marry men must be put to death, but she’s stopped
when a man suggests changing the law to _compel_ fairies to marry
men in order to live. “Death or marriage” is an adequate summary
of Rehnquist’s approach to women’s rights.

Reading the piece quickly, a person might be inclined to regard
Breyer’s op-ed as “well meaning” or at least “harmless”
drivel. We’re clearly supposed to think, how nice, how quaint! Why
can’t we all just get along the way the justices do? And, in fact,
Breyer closes by advising, “What works for nine people with lifetime
appointments won’t work for the entire nation, but listening to one
another in search of a consensus might help.”

It’s the kind of conclusion one would expect from a fairy, not an
intellectual who has been paying attention. Breyer’s article
doesn’t offer any actual evidence to show that consensus is
possible—or even _desirable_ given what some of his work
“friends” want to do to vulnerable people in this country.
Moreover, Breyer fails to mention that his precious comity and
consensus-building failed to stop his conservative friends from
gutting the Voting Rights Act in 2012’s _Shelby County v.
Holder_ or revoking reproductive rights in 2021’s _Dobbs v.
Jackson Women’s Health_.

The point of Breyer’s piece (to the extent there was a point) was to
distract readers from those decisions (and any number of horrid
decisions emanating from the corrupt and broken Supreme Court) and
burnish the institution’s reputation at a time when the people have
just about had enough of the justices. The Supreme Court’s approval
ratings hover at all-time lows, and every month there is another
story, order, or opinion that exposes the court as a partisan cabal
beholden to the Republican Party or the conservative culture warriors.
The Roberts court is a Moloch set on devouring the rights of women,
people of color, and the LGBTQ community, while preserving the rights
of mass shooters to amass deadly arsenals, but Breyer wants us to know
that “in my 28 years on the court I did not hear a voice raised in
anger.”

Why the hell not? Why weren’t you, Steve, sitting there screaming at
your conservative colleagues, or asking everyone who would listen to
stop your “friends” from hurting people? Why do you think
intellectual detachment in the face of active horror is a virtue, when
it’s more like a sin? Why do you think the loss of public decorum is
a bigger threat to the Supreme Court’s institutional standing than
its self-inflicted loss of ethics, impartiality, and accountability?

In service of this reputation-burnishing, Breyer works overtime to try
to humanize the justice—to get people to see them as regular people,
not nuclear weapons deployed against fundamental rights. As columnist
Hayes Brown explains
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the “core” of Breyer’s essay “emphasiz[es] the humanity of
justices who are more than willing to de-emphasize the humanity of
others in their decisions.” Breyer’s task would be a lot easier,
however, if the justices themselves treated people as human beings,
instead of mere pawns in their ideological wars.

Consider the last few years: Since 2022 alone, the Supreme Court
justices have decreed that pregnant people can get sick and die for
the sake of “state’s rights,” that immigrants can be harassed
and terrorized for lack of “status,” and that inmates can be sent
to their deaths because evidence of their innocence was not brought in
a “timely” manner. Where is the humanity when desperate people
show up for relief but are told that James Madison and Harlan Crow
want them to suffer?

Maybe Breyer can enjoy a night at the opera with people who think a
10-year-old girl can be raped and forced to bring the pregnancy to
term _as a matter of law_, but I can’t. There isn’t a flute
magical enough to make me like these people. Maybe Breyer should have
spent less time having lunch with his conservative colleagues and more
time having lunch with their victims.

Breyer’s piece, of course, wasn’t written for me, or for anybody
who has to fight against the edicts handed down by his conservative
friends. But I am curious about whom his piece was written for, and
why _The New York Times _was eager to publish an editorial that adds
functionally nothing to the discourse.

The most simple (and cynical) answer is that Breyer has a new book
out: _Reading the Constitution: Why I Chose Pragmatism and not
Textualism_
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I haven’t read it yet, but all of Breyer’s prior books (and most
of his judicial opinions) follow the same pattern of moderate pablum
filtered through a law and economics prism. They are, in a word,
boring (and I say that as a person who is generally not bored by the
law). _The New York Times_ review
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this latest one as “well meaning, tedious and exasperating.” The
reviewer also said that Breyer is “so wedded to propriety and
high-mindedness that he comes across as earnestly naïve,” and I
think that pretty much summarizes his op-ed. Well-meaning naivety is
kind of Breyer’s calling card at this point, so if you liked his
op-ed, you’ll probably love his book.

There is certainly an audience for Breyer’s brand of earnest
high-mindedness in the face of all available evidence to the contrary,
and that audience probably makes up the irreducible core of _New York
Times_ subscribers. There are a lot of people who believe that
“politics” and “policy differences” can and should be ignored
among colleagues and friends. They believe that the fact that one
person supports, say, amnesty for migrants who are out of status,
while another person supports shooting them to death should their
children miraculously manage to squeeze through the razor wire
barricade erected to drown them, shouldn’t prevent those two people
from enjoying a few beers together. They believe that _rancor_ is
the thing that is odious, and if well-meaning people would just sit
together and listen to each other, we could find common ground between
the “Black people are genetically dumber and more prone to violence
than whites” crowd, and the “I have read books about the history
of Western Europe” crowd.

The audience for Breyer’s anecdotes is likely the same demographic
as Breyer himself: old straight white college-educated men, and people
who desperately want to attain the status and prestige of old straight
white college-educated men. Breyer can maintain the intellectual
gooberism of institutional collegiality in the face of real-world
harms because the harms are not visited on him. He’s not the guy the
cops choke to death; he’s not the immigrant being deported away from
his children; he’s not the woman being forced to incubate a
rapist’s baby against their will. Breyer was a reliable liberal vote
on all of these issues, but he can write about people who disagree
with him from a detached, pragmatic viewpoint, because these human
rights violations aren’t happening to him and never will. He can
hang out with his colleagues despite their worst rulings, because
their worst rulings are always affecting _other_ people.

Indeed, there is evidence that when issues hit a little closer to
home, a different Breyer emerges. Despite his reputation as a moderate
liberal (as well as his well-earned anti–death penalty bona fides),
Breyer was a hard-liner when it came to criminal justice issues.
Cristian Farias has written
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“No liberal justice has cast more pro-government, carceral votes
than Breyer has in the modern Supreme Court.” That’s true, but
Breyer wasn’t always that way. Breyer turned into a full enemy of
Fourth Amendment and its protections against unreasonable searches and
seizures kind of late in the game, in 2013
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believed that had a lot to do with his being robbed by a man wielding
a machete while on vacation in the Caribbean in 2012
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I think Breyer proves the old adage
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conservative is a liberal who got mugged the night before.”

I do not believe Breyer ever invited the guy who robbed him back to
his house to play bridge. Maybe Breyer wishes he could have. Maybe
Breyer believes they could have reached a consensus on how much cash
and jewels Breyer should have handed over. But maybe if Breyer
understood that his conservative colleagues are robbing people not of
their wallets but of their fundamental human rights, he’d exhibit
better judgment in his choice of friends.

I understand that the Supreme Court justices can put aside their
professional differences long enough to play cards together. What
Breyer doesn’t seem to understand is that many of us, those not clad
in gold-fringed robes and unaccountable power, cannot merely set aside
the justices’ adverse rulings. We have to live with them. We have to
suffer under them. And some of us have to die because of them. Perhaps
Breyer could be bothered to remember that the next time his buddies
come over for dinner.

_ELIE MYSTAL is The Nation’s justice correspondent and the host of
its legal podcast, Contempt of Court
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He is also an Alfred Knobler Fellow at the Type Media Center. His
first book is the New York Times bestseller Allow Me to Retort: A
Black Guy’s Guide to the Constitution,
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Press. Elie can be followed @ElieNYC [[link removed]]._

_Copyright c 2024 THE NATION. Reprinted with permission. May not be
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* Supreme Court
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* Stephen Breyer
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* consensus
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* voting rights
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* Reproductive rights
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* states rights
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* criminal justice
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