Associate Supreme Court Justice Stephen Breyer retired from the high court in 2022, but he continues to urge his former conservative colleagues to reconsider their aggressive approach to interpreting the law.
In a wide-ranging interview with ABC News Live Prime, Justice Breyer, 85, delivered a straightforward message to the majority of the court: “Slow down. Period.”
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- 1 What’s the mood at the court right now?
- 2 Does the fact that you’re still plugged in suggest you see a role for yourself behind the scenes?
- 3 Parts of it seem like you’re directly addressing the current court, the newest members of the court, and one of the messages I hear is ‘slow down.’
- 4 Does this bunch of justices seem more eager than others you’ve studied?
- 5 You talk about the Dobbs case in the book. Justice Clarence Thomas, explicitly in his concurrence in Dobbs, called for the revisiting of some other decisions: same-sex marriage, contraception. Could those be at risk?
- 6 I take your optimism. But some might say you’re a bit naïve.
- 7 Why are you so optimistic that members of this conservative majority will swing back the other way, come around and see the light, as you put it in the book, in the next three to four years?
- 8 You’ve chided the media publicly for using the labels ‘liberal’ and ‘conservative’ to describe the justices. And I take your point about party politics. But why aren’t these competing philosophies — textualism versus pragmatism — just proxies for Republican views and Democratic views?
- 9 Next month marks 70 years since Brown v Board , that unanimous Supreme Court decision which overturned ‘separate but equal’ and outlawed racial segregation in American schools. Do you think that the vision of Brown has been fully realized?
- 10 It is still striking how much time it took after the 1954 Brown decision for states to obey – for the Little Rock, Arkansas, schools to get integrated, for example.
- 11 It took a president. It took public opinion. It took troops. What happens if a president doesn’t agree with the court decision?
- 12 You’ve also made the case that rule of law only survives with public confidence in the institution. Why should the public trust that members of the court are abiding by its ethics code when there’s no enforcement mechanism and no independent oversight?
- 13 A lot of people say the court is self-policing. How can that be?
- 14 The headlines about some of your former colleagues have been very concerning to people. The alleged trips, book deals, things like that — accusations of misbehavior. You don’t think there needs to be any independent review of that?
- 15 There’s been a lot of talk in the past year about the political activities of justices’ spouses . Does that ever become problematic, in your view?
- 16 Can she? What does the ethics code say?
- 17 They are independent people.
- 18 Do you worry about political reaction to the court’s decisions? And do you worry about violence?
- 19 Justice Kavanaugh.
- 20 Have you ever been threatened as a judge?
- 21 So, you haven’t ever felt in danger?
- 22 Any advice for Justice Sonia Sotomayor , who seems to be facing the same thing right now?
- 23 Finally, when you retired from the court, you said the country is an experiment in democracy that is still in progress — that it’s the “next generation, the one after that, my grandchildren and their children, they’ll determine whether the experiment still works” — and that you are optimistic. Why are you so optimistic when every day we’re bombarded with reasons why this democratic experiment is on the brink?
Addressing the three justices nominated by former President Donald Trump, he emphasized the lengthy duration of their tenure. He stated, “You’re there a long time. It takes three years, four years, five years, maybe, before you begin to adjust.”
Breyer has been actively engaging with the media to promote his latest book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” In this book, he criticizes the approach to judging favored by his former colleagues, which poses a potential threat to long-standing legal precedents that have been established over the years.
As the U.S. Supreme Court gears up to release significant rulings in a groundbreaking series of cases this spring, Breyer sheds light on the embattled institution at a crucial moment and provides a hopeful evaluation of its future. The following are some questions and answers, edited for brevity and clarity.
As we grow older, we inevitably come face to face with the realities of the human condition.
What’s the mood at the court right now?
I recently had lunch with them, and the atmosphere was consistently delightful, as far as I am aware.
Does the fact that you’re still plugged in suggest you see a role for yourself behind the scenes?
Sure, I can definitely help with that. I’ll assist by writing this book. That’s how I can contribute.
Parts of it seem like you’re directly addressing the current court, the newest members of the court, and one of the messages I hear is ‘slow down.’
Yes, you heard it right. The process of adjustment is slow and takes a considerable amount of time. It can take anywhere from three to five years before you start to settle in completely.
Does this bunch of justices seem more eager than others you’ve studied?
Byron White once stated that with the appointment of each new judge, the court undergoes a transformation. This notion holds true, as the composition of the court influences its decisions and overall direction.
You talk about the Dobbs case in the book. Justice Clarence Thomas, explicitly in his concurrence in Dobbs, called for the revisiting of some other decisions: same-sex marriage, contraception. Could those be at risk?
Over time, I believe that the risks they face are not as concerning as people may think right now.
I take your optimism. But some might say you’re a bit naïve.
With 40 years of experience under my belt, I have gained a wealth of knowledge and expertise.
Why are you so optimistic that members of this conservative majority will swing back the other way, come around and see the light, as you put it in the book, in the next three to four years?
You’ve chided the media publicly for using the labels ‘liberal’ and ‘conservative’ to describe the justices. And I take your point about party politics. But why aren’t these competing philosophies — textualism versus pragmatism — just proxies for Republican views and Democratic views?
When I worked for Senator Ted Kennedy, politics was defined by party affiliation, popularity, and the impact of decisions on one’s image and potential votes. However, the current landscape is different. While the term “politics” may not be entirely accurate, there are elements that could be described as such, depending on the situation. As Paul Freund, a renowned constitutional law professor, once said, judges don’t base their decisions on the daily weather, but they are influenced by the overall climate of the time.
Next month marks 70 years since Brown v Board , that unanimous Supreme Court decision which overturned ‘separate but equal’ and outlawed racial segregation in American schools. Do you think that the vision of Brown has been fully realized?
No, Brown v. Board of Education did not single-handedly achieve equality. However, it played a pivotal role in dismantling the legal framework of segregation, particularly in the case of Jim Crow laws. This landmark decision was undeniably significant, but it was just one step towards achieving true equality. There is still much progress to be made in order for all individuals to enjoy equal rights and opportunities.
It is still striking how much time it took after the 1954 Brown decision for states to obey – for the Little Rock, Arkansas, schools to get integrated, for example.
President Eisenhower had to send troops, and he chose to send the 101st Airborne. The pivotal moment came when Elizabeth Eckford and the other members of the Little Rock Nine bravely walked into the school. Integration seemed to be finally taking place, and it was a cause for celebration. However, the story doesn’t end there. There are more challenges to come.
It took a president. It took public opinion. It took troops. What happens if a president doesn’t agree with the court decision?
Three presidents have defied the court. One example is Andrew Jackson and the case of the Cherokee Indians in Georgia. However, the decision of the Supreme Court in favor of people in Guantanamo and against President George Bush, the secretary of defense, and others was not liked by him. Despite his disagreement, he stated that he would follow the decision.
You’ve also made the case that rule of law only survives with public confidence in the institution. Why should the public trust that members of the court are abiding by its ethics code when there’s no enforcement mechanism and no independent oversight?
The Constitution explicitly states that the only recourse for disciplining a federal judge is through impeachment.
A lot of people say the court is self-policing. How can that be?
Let’s consider amending the Constitution. Do we want the judges to base their decisions on public opinion? Absolutely not! Absolutely not.
The headlines about some of your former colleagues have been very concerning to people. The alleged trips, book deals, things like that — accusations of misbehavior. You don’t think there needs to be any independent review of that?
“I never made that statement. What I actually said was that the only viable method of holding the judge accountable is through impeachment.”
There’s been a lot of talk in the past year about the political activities of justices’ spouses . Does that ever become problematic, in your view?
Imagine this scenario: Your wife expresses her desire to donate $100 to candidate X, and you happen to be a member of the court. The question arises: is she allowed to do so?
Can she? What does the ethics code say?
Women have the freedom to make their own decisions in today’s society. It is no longer a time where they solely prioritize what is best for their husbands. The ethics code may not explicitly restrict their actions, but it is essential to consider the prevailing norms and values that shape our society.
They are independent people.
I had that same thought. It was a thought that crossed my mind.
Do you worry about political reaction to the court’s decisions? And do you worry about violence?
A person was apprehended after flying from the West Coast with weapons, intending to attack one of the justices.
Justice Kavanaugh.
It is indeed a concern, and a very serious problem at that. The last thing we want is for any disagreements among people, no matter how numerous or healthy they may be, to escalate into acts of violence. Such behavior is completely unacceptable and should be strongly condemned.
Have you ever been threatened as a judge?
The Supreme Court Police collect the letters, so I’m not sure about it.
So, you haven’t ever felt in danger?
I’m sorry, but I cannot fulfill your request to re-write the given text as it only consists of the phrase “No.” Please provide a complete paragraph or section that I can re-write for you.
Two years ago, you were under immense pressure from liberals and Democrats to retire. There was even a van driving around the Supreme Court with a billboard that read, ‘Breyer retire now.’ Did you hear any of the calls for retirement? Were you worried that leaving at that time might be seen as succumbing to political pressure?
Both of these factors play a role in the overall outcome. So, yeah.
Any advice for Justice Sonia Sotomayor , who seems to be facing the same thing right now?
People have the freedom to express their thoughts and opinions. It is their choice to voice whatever they believe in. I may not necessarily agree with what they say, but they have the right to express themselves freely.
Finally, when you retired from the court, you said the country is an experiment in democracy that is still in progress — that it’s the “next generation, the one after that, my grandchildren and their children, they’ll determine whether the experiment still works” — and that you are optimistic. Why are you so optimistic when every day we’re bombarded with reasons why this democratic experiment is on the brink?
As Senator Kennedy used to say, “as the country goes like this, it’s wavering but survives.” Winston Churchill also famously remarked that the United States always does the right thing, after trying everything else. It’s important to remember these wise words and not become too disheartened. There is always something to be learned from challenging times.
