It's not often that Supreme Court justices face the pubic and invite questions about their decisions. Stephen Breyer, a Clinton appointee, did just that at a couple of events recently in Los Angeles.
The first questions Breyer was asked dealt with Bush v. Gore, and with the recent Citizens United ruling, the landmark decision holding that laws limiting some corporate political contributions were an unconstitutional violation of the First Amendment. Both decisions were 5–4, with Republican appointees forming the majority. The result of the first, of course, was that the Court made George Bush president; the result of the second is that corporate money has been pouring into Republican candidates this election.
Yet Breyer insists that neither Bush v. Gore nor Citizens United were "political" decisions. They were, he said, legal decisions based on legal reasoning. While pointing out that he had voted against the majority on both, he worked hard to convince the audience that the Republican positions were plausible and reasonable.
"After you're appointed to the Court," he said, "you're not political."
Many in the audience found this dismaying; some found it infuriating.
Breyer, who is on tour promoting his new book Making Our Democracy Work: A Judge's View, appeared at a book party in Beverly Hills and in the Los Angeles Public Library ALOUD series in conversation with Henry Weinstein, formerly an award-winning LA Times staff writer on law and labor and now professor of legal practice at the UC Irvine Law School.
I got to ask Breyer one question: "You said the Warren Court was 'a Court with a mission.' Don't you think the Roberts Court is also a Court with a mission?"
He offered a one-word answer: "No."
And quickly moved on to another question.
Why does Breyer take this implausible position? We had to wonder how much of his stance is part of a very public effort on his part to reach out to the Roberts forces on the Court, rather than take them on in public. But he must know that the Republicans on the Court are like the Republicans in Congress—they don't want to meet the other side halfway, or even a quarter of the way. Scalia, Thomas, Alito and Roberts are not going to agree with Breyer on the crucial cases, no matter how conciliatory he may be in public.
Breyer also is eager to defend the legitimacy of the Court from those who dismiss it as "political." He's concerned about what he called the "fragility" of the court's authority, the "difficulty" of persuading people to accept the Court's decisions when some of those decisions are highly unpopular. But nothing has undermined the Court's legitimacy more in the last few decades than the majority's blatantly political decision in Bush v. Gore.
In fact, there was only one case where he was willing to say the Court had a political movitation: Dred Scott, the 1857 decision where the Court ruled that no black person could be a citizen of the US and that blacks had no rights that whites were bound to respect. Breyer said Supreme Court Chief Justice Roger Taney had a political motive: he wanted to prevent civil war. But Lincoln, Breyer said, criticized the decision in a historic speech at Cooper Union, eloquently, and that, he said, eventually led to the Civil War. The moral Breyer drew was that politically motivated Court decisions can lead to the opposite of what the justices intended and thus should be avoided.