It is big news when a U.S. Supreme Court justice publishes a book. However, Justice Stephen Breyer’s 101-page treatise, "The Authority of the Court and the Perils of Politics," did not live up to the expectation — and not just because of its steep price-to-length ratio.
The book, based on Breyer’s Scalia Lecture at Harvard Law School earlier this year, argues against reforms that subvert the Supreme Court’s ethos, maintaining that justices and judges act apolitically after taking their judicial oath. Increasing public trust in the institution through education, participation and practice, he adds, is necessary for effective governance.
In essence, Breyer envisioned an ideal Enlightenment judge we must blindly trust: an emotionless, apolitical entity. Clearly, this is not the case. Differences in backgrounds, upbringing and experiences beget political differences, which yield — directly or indirectly — different jurisprudential outlooks. Politics influence the court, no matter how objective it endeavors to be.
During the 2019-2020 term, the most common 5-4 alignment was the conservatives pitted against the liberals. Last term, the post-Ginsburg 6-3 conservative majority dismantled the Voting Rights Act, donor disclosure requirements and union laws.
In both alignments, the justices were divided according to political outlook. These divisions stem from political differences embodied through jurisprudential differences. For instance, in Citizens United v. FEC, Reagan-appointee Justice Antonin Scalia, the “faint-hearted” originalist, denounced Justice Stevens for his dissent, even though historical evidence buttresses Justice Stevens' reasoning that Congress can regulate corporate speech. In this case, political ideology, not a jurisprudential framework, dictated the alignment of the Court.
Justice Breyer underscores the deliberation and compromise justices undertake before reaching a verdict, yet the inner workings of the Court apparently defy his assertion. It is commonplace to read scathing rebukes — and even direct attacks — in dissents. From “the arrogance of this argument is breathtaking” to “neither the Constitution nor common sense can sustain it,” each statement crystallizes the fractured blocs within.
We also see politics outside the Supreme Court. Less than a year ago, Justice Alito made an ultra-partisan speech. Just last week, Justice Barrett echoed Justice Breyer, remarking that justices were not “partisan hacks.” Ironically, she was speaking at the McConnell Center at The University of Kentucky with Sen. McConnell (R-KY) in attendance, the same senator who consolidated Republican support for her less than four months before the end of former President Trump’s term when he refused to consider Garland’s nomination with 10 months until the end of former President Obama’s term.
Not only are justices guided by politics, but the judiciary is built upon them. From the partisan pick of an “in-line” judge, whose visions complement the executive’s agenda, to the maneuvered selection and timing of cases, each step in the process is rooted in politics.
As Justice Breyer acknowledges, the Supreme Court evaded substantive racial decisions post-Brown until Heart of Atlanta Motel, Inc. v. United States 10 years after. Justice Breyer ascribes the silence to the protection of the Court’s authority. Isn’t that a political tactic? And one at the cost of justice for an oppressed group, no less.
Politics are ingrained in the Court. Instead of lying to ourselves, we must find a solution.
An easy reform is the diversification of justices. In lieu of Ivy League-educated judges with carbon-copied resumes, let’s choose justices who come from diverse walks of life — economists, diplomats, ambassadors and scientists — and of diverse jurisprudential perspectives — textualists, framework originalists, pragmatics, positivists and realists.
As Breyer correctly holds, “The more diverse the jurisprudential views on a court, the more important compromise among the judges becomes.”
We can implement some moderate reforms without eroding the authority of the court. As Washington University and Vanderbilt Law School professors, respectively, Daniel Epps and Ganesh Sitaraman put forth, while term limits are unlikely to pass, Congress should pass legislation that codifies ethical standards, reviews the Court’s statutory interpretation or makes the Court review un-appealed cases randomly. Some reforms can be intra-institutional, such as ethical codes, gift disclosures and funding disclosure of amicus organizations.
A few weeks ago, the Court declined to enjoin a Texas law that allows private citizens to sue anyone who “aids and abets” an abortion that occurs after six weeks of conception. That case came from the Supreme Court’s “shadow docket” — cases that involve no oral arguments, little deliberation, and curt opinions.
Originally, it was used for emergency and inconsequential cases, but its role expanded to precipitate executions during the Trump presidency. Congress must reform the unreasoned shadow docket decision making and make the justices’ vote public for accountability’s sake.
We cannot accept Justice Breyer’s assertion that the Supreme Court is not political. It is. But its fate is in our hands; we can either reform it or watch it wither and perish under partisanship.