Stephen Breyer and the danger of the deluded institutionalist

Stephen Breyer and the danger of the deluded institutionalist

Washington Post

Opinion by 

Paul Waldman

Columnist

May 19, 2021 at 1:16 a.m. GMT+9

Associate Justice Stephen G. Breyer sits with fellow Supreme Court justices for a group portrait at the Supreme Court Building in Washington. (J. Scott Applewhite/AP)

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Few among us want to be insulted by people who are instructing us on what to do with our lives. But that is the situation Supreme Court Justice Stephen G. Breyer now finds himself in. At the age of 82, he is besieged by liberals pleading with him not to repeat Ruth Bader Ginsburg’s mistake, to retire now while he can be replaced by someone of a similar legal outlook.

In response, Breyer could become the most dangerous version of himself: the solitary institutionalist, so convinced that he alone can save the body to which he is devoted that he blinds himself to reality and helps those who would undermine everything he supposedly stands for.

Breyer’s situation has a disturbing parallel in Sen. Joe Manchin III (D-W.Va.) who is as eager to protect a Senate that now exists only in his imagination as Breyer is to safeguard the fiction of an apolitical Supreme Court. The damage the two could do, each guided by what they consider the noblest of motivations, is utterly frightening.

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In recent months, the calls for Breyer to retire — such as this one or this one or this one — have gotten louder and more frequent, and are no doubt deeply offensive to him. They imply that his usefulness is at an end, when he considers himself vigorous and engaged. They insist that he must make a decision guided by crass, distasteful politics, which would violate everything he believes about the role of the judge.

It’s entirely likely that all the discussion about his possible retirement will make him only more insistent that he should stay on the court for longer, to strike a blow against politicization. The New York Times reports:

“My experience of more than 30 years as a judge has shown me that, once men and women take the judicial oath, they take the oath to heart,” he said last month in a lecture at Harvard Law School. “They are loyal to the rule of law, not to the political party that helped to secure their appointment.”

In the speech, a version of which will be published in September as a book called “The Authority of the Court and the Peril of Politics,” Justice Breyer said that the odor of partisanship damages the judiciary.

“If the public sees judges as politicians in robes,” he said, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power.”

That’s perfectly true. The problem is that Republicans have already politicized the court. Breyer couldn’t stop it when it happened, and he can’t reverse it now.

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Perhaps Breyer noticed that after Antonin Scalia’s death in 2016, then-Senate Majority Leader Mitch McConnell held his seat open for nearly a year so it could be filled by a Republican president. Perhaps Breyer noticed how virtually every Republican in the land supported this unprecedented perversion of the process. He may have noticed how after Ginsburg’s death, Republicans rushed through the confirmation of Amy Coney Barrett with the urgency of MacGyver defusing a ticking time bomb. He might even remember a case called Bush v. Gore.

The impulse to say I will not be a party to any further politicization is an understandable one. But the trouble is that Breyer is a party to it whether he wants to be or not. He can retire while Democrats control the Senate and the presidency and see a qualified jurist who shares his general outlook take his place. Or he can wait until illness or infirmity makes the decision for him, in which case it could well happen that Republicans will again refuse to allow a Democratic president to fill that vacancy, for their own political reasons.

Make no mistake: If they can, they will. If, for instance, they take control of the Senate in the 2022 midterms, then Breyer retires in 2023, they will do exactly what they did in 2016. McConnell will not say, “I was so moved by Justice Breyer’s commitment to an apolitical court that I will allow President Biden’s nominee to receive a vote forthwith.” The reality of what Republicans have done to the court is not under Breyer’s control; he has to make his decision with that reality in mind.

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But he’s not inclined to do so, and I would guess that ego has a lot to do with it. Not because Breyer has a self-regard any greater than anyone else in his position, but because everyone who holds that kind of position believes themselves to be a figure of unique consequence and efficacy. They go through life surrounded by tributes and obsequiousness, with a staff to cater to their every need; eventually it gives you a particular view of the world and your place in it.

When you tell someone in that position that they must change their own behavior and decisions to align with a reality they find abhorrent, don’t be surprised when they say no.

The same is true of Manchin, who also seems to consider himself the guardian of an institution that has shifted around him. Even more so than Breyer, Manchin holds on to a view of his institution that is completely antiquated. Rather than grapple with what the Senate is today and how he can operate within that reality to do the most good, Manchin seems to believe he can single-handedly make it into something it hasn’t been for decades.

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Breyer may still conclude, as his former colleague Anthony M. Kennedy did, that it’s better to leave the court when you can effectively name your own replacement; Kennedy was succeeded by his former clerk Brett M. Kavanaugh, and among the leading candidates to be Biden’s first nominee is Ketanji Brown Jackson, a former clerk of Breyer’s. But time is short.

As the saying goes (perhaps uttered by the Greek statesman Pericles, or someone else clever), just because you don’t take an interest in politics doesn’t mean politics won’t take an interest in you. The worst thing is to imagine yourself above it all, with the ability to protect institutions that have shifted and changed over the course of decades, solely through the power of your example.

It’s a dangerous delusion. And Republicans are crossing their fingers, hoping that Breyer and Manchin hold on to it until it’s too late.

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