Nearly half of the Supreme Court spent the summer and early fall on a national gaslighting tour. Justices Clarence Thomas, Samuel Alito, Amy Coney Barrett, and Stephen Breyer all gave high-profile speeches or interviews during which they extolled the nonpartisan nature of the court. They further used their bully pulpits to attack the media and accuse it of misleading the public about the court’s stark political divide.
A simple look at their actions, however, belies the justices’ disinformation offensive. The Supreme Court ended its last term in June with a spate of 6-3 decisions—gutting voting rights and labor rights, among others—that fell neatly along party lines. The six conservative justices then spent the summer, when the court was supposed to be out of session, using the shadow docket to blow holes in the Biden administration’s agenda—from the eviction moratorium to Biden’s attempt to end the “Remain in Mexico” policy. They then capped off their general assault on the rights of minorities and women by throwing out 50 years of abortion precedent to allow Texas’s anti-abortion bounty hunting scheme to go into effect.
Perhaps the justices don’t think they’re acting like partisan hacks, just like a shark doesn’t think there’s anything wrong with grabbing a snack. But at some point, there’s enough blood in the water to make the motivations of the predator irrelevant.
That said, I strongly suspect that the justices are lying about their intentions anyway. Supreme Court justices who intend to release a series of unpopular, partisan decisions—which is exactly what the conservatives intend to do in this term—have every motivation to lie and say they’re doing something else. Remember, the Supreme Court has no army and no money. Its decisions carry weight only because we all agree to respect them. Conservatives like Thomas, Alito, and Barrett, who want to take away rights, all have an interest in lying about what they’re doing and why.
But Justice Breyer is an interesting case because he is not a member of the conservative cabal on the court. He isn’t part of the winning majority, which means he shows up to work every day only to watch the issues, parties, and legal arguments he supports get shredded. Yet just last month he published a new book, The Authority of the Court and the Peril of Politics, in which he argues that the court is apolitical in nature, driven by judicial philosophy as opposed to political agendas. He asserts that the justices are not merely “politicians in robes” and warns that attempts to reform the court (through court expansion, for instance) are a dangerous “temptation better resisted.” He suggests that they could threaten the very rule of law.
The book is incredibly wrong and self-serving. He doesn’t really convince anybody that the court is apolitical; he just states that it is and argues that it’s important for the rest of us little people to think of it that way. If you didn’t know the author was a sitting Supreme Court justice, you’d think the book was written by a law clerk trying to impress one.
What gives? The Supreme Court is on an aggressive run of redefining who gets to participate in democracy (not Black people), who gets to have rights (not women), and who gets to chart the course for the country (not the federal government). People on the left are finally waking up to the importance of the Supreme Court, something base white-wing voters have known for a generation—but now Breyer thinks it’s a good time to write a book claiming all is well and warning against reform? Breyer looks like a guy handing out suntan lotion in the eye of a hurricane and scoffing at those who suggest running for shelter.
My expertise is not psychology, so I cannot speak to the cloying narcissism of an 83-year-old man who refuses to retire during the brief moment when he can be replaced by a person who shares his values. But I know a little bit about law, so I can answer the old question the Romans asked when trying to unravel legal mysteries: Cui bono? Who benefits? Who wins from Breyer making the talk show rounds to promote his ideas about the apolitical nature of the Supreme Court?
The obvious answer to that question is: Stephen Breyer.
Breyer’s book was published on September 14, just a few weeks before the new court term began. It’s short, closer to a verbose pamphlet than a succinct book. Audible says its listening time is just one hour and 52 minutes, which is just a little over half the runtime of his most famous book (before this one), Active Liberty, which took three hours and 35 minutes to listen to.
I bring up the length because the book feels to me like it was hastily scratched out after Ruth Bader Ginsburg died. I believe this book is Breyer’s response to the deafening calls for him to retire—calls that started almost as soon as John Ossoff and Raphael Warnock won their Senate races in Georgia. All of Breyer’s arguments about how the court should not be expanded through partisan court packing could seamlessly double as arguments for why Breyer shouldn’t be bullied into retiring at the opportune partisan moment. All of his protestations that the court is not motivated by political agendas buttress his belief that his political considerations shouldn’t dictate his retirement schedule. Breyer’s book could have been titled No Country for Old Judges: Let’s Flip a Coin for Democracy, Friend-O with no other change to the manuscript.
It’s not unusual for Supreme Court justices to publish self-serving little books. This is Breyer’s seventh, and I’m not counting his legal casebooks. The newest justice, Amy Coney Barrett, has already inked a $2 million book deal, and I’m sure that will just be the first of many tomes in which Barrett explains why secular antidiscrimination laws should not apply to Christians who feel inspired to embrace bigotry.
But it is unusual for Supreme Court justices to go on Stephen Colbert’s show to talk about the court and politics, as Breyer did the day his book launched. It is unusual for justices to appear on Sunday morning TV to talk about the court and politics, as Breyer did the day before his book launched. And it is unusual for liberal justices to go on Rupert Murdoch’s Fox News to discuss anything, as Breyer did two days before his book launched.
Conservative justices seem to be giving speeches to distract the American people from their partisan agenda. Breyer seems willing to help them do that work to sell books.
If Breyer’s book were good or relevant or not written on the back of a cocktail napkin during outdoor dining on Martha’s Vineyard, I might be inclined to give him a pass. But Breyer isn’t being invited on these shows because his book adds something to the discourse about our polarized democracy: He’s a guest on late-night TV because he’s playing Hamlet over his own retirement. Breyer is quite literally monetizing his alleged indecision in the form of book sales.
Understand, many people reading this column could not identify Breyer in the photo at the top of this column without help from the headline, and almost nobody would have been able to pick him out of a lineup before Ginsburg died. His career has been long and honorable, but not particularly interesting or notable. He doesn’t have a cute nickname. He’s never inspired devotion from his side of the aisle, nor hatred from the other side. Nobody goes to law school because they want to emulate—or defeat—Stephen Breyer. He’s just been “an associate justice,” plenty powerful but destined to be the answer to some trivia question future law students will be expected to know.
Except for right now. Right now, when he should be exiting the stage, is the first time many non-lawyers have noticed that he’s been part of the show. For the first time, he’s the senior liberal on the bench, which carries with it some assigning privileges over who gets to write up which cases. Sure, he mainly gets to assign dissents because he’s the senior person on the losing side, but it’s still more power than he used to have. And he appears to be loving it. He’s going on TV, selling books, assigning cases, and having the entire legal media (to say nothing of the Senate and the White House) hang on his every word.
What’s sad is that, for a guy who claims to be concerned about public confidence in the courts, he seems to not understand that his own actions are adding to that sense of distrust. People can see him out there hawking books. People notice that he wasn’t railing against politicization when Mitch McConnell was busy denying Merrick Garland a hearing but suddenly seems very concerned about it when it’s time to retire. People understand that while Breyer might say judges aren’t motivated by politics, Republicans keep winning in front of the Supreme Court.
Breyer isn’t making the court look apolitical; he’s making it look hopelessly out of touch with the reality experienced by the rest of the country.
I still do not believe Breyer would be so reckless as to extend his tenure past the midterms. I think he will retire in June because I simply will not torture myself contemplating any other possibility until I have to.
But I also believe that Breyer will milk what time he has left for every interview and every dollar. And that will hurt the very institution he claims to want to protect.