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Justice Breyer’s new warning to Democrats couldn’t have come at a worse time

Judge Stephen Breyer – a Bill Clinton-appointed attorney who has served on the Supreme Court since 1994 – chose this moment to warn Liberals not to respect the rule of law.

He did so despite the fact that less than five months ago a violent mob of supporters of former President Donald Trump broke into the U.S. Capitol to keep Trump, who had just lost his re-election bid, in office without an electoral mandate. In the months that followed, state-level Republicans loyal to Trump passed laws that appeared to have no other purpose than restricting voting. And now Republican leaders are blocking a bipartisan investigation into the January 6th riot in the Capitol.

And yet, amid what may be the greatest threat to liberal democracy in the United States since Jim Crow, Breyer warns that liberals are jeopardizing the rule of law because a small minority of Democrats have proposed aggressive action to curb the Supreme Court.

And Breyer does so at the same time as he is calling on the Democrats to find common ground with a party that refuses to investigate an attack that threatens much of Congress.

"If you need Republican support, talk to them." My friend, what do you think? "Make them talk and at some point they will say something you are okay with."

– Steven Mazie (@stevenmazie) May 28, 2021

In a book due out this fall, Breyer warns the US it will pay a heavy price if it does not show respect for the judiciary – despite the fact that the Supreme Court is more conservative now than it has been at any point in the last three Generations It is a mistake to believe that any of your colleagues are high-ranking partisans.

"A judge's loyalty is to the rule of law," writes Breyer, "not to the political party that helped secure his appointment."

Nor does he hide his motivation for writing the book entitled "The Authority of the Court and the Danger of Politics": "Recently, proposals have been made to increase the number of Supreme Court justices," notes Breyer. "I want those whose reflexive instincts can favor significant structural (or similar institutional) changes, such as forms of trial, to think long and hard before embodying these legislative changes."

What Breyer's book can say about his retirement provision

Realistically, Breyer has little to fear from Democrats over the idea of ​​bringing additional judges to justice.

Although a handful of Democratic lawmakers enacted laws that would add four seats to the Supreme Court and give Democratic candidates a 7-6 majority, the bill landed in Congress with a thud. In April, House spokeswoman Nancy Pelosi said she had "no plans" to put the bill to a vote. And while President Joe Biden set up a commission to investigate the reforms of the Supreme Court, no outspoken proponents of the reform were appointed.

Democrats are all too familiar with the archetype of a self-identified liberal, or Democrat, who appears to be more afraid of the hypothetical possibility of progressive overreach than Republicans who take very real steps to oust democracy. Think Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), whose loyalty to the filibuster is likely to ruin any chance of passing a voting bill before the 2022 midterm elections hand over control of Congress to the Republicans could.

Breyer's decision to join the ranks of the liberal scolding could, however, prove to be even more momentous than Manchin and Sinema's loyalty to the filibuster due to one fact: Breyer is 82 years old.

Supreme Court Justices Elena Kagan, Stephen Breyer and Chief Justice John Roberts arrive for President Trump's State of the Union address in 2018.

Tom Williams / CQ appeal via Getty Images

With the Senate wrongly divided in a way that benefits Republicans, the current Senate Democratic majority could be Breyer's last chance to retire under a president who appoints a like-minded judiciary – and under a Senate that actually affirms that justice could.

But his book can be read as an indictment of such timed retirements, which are inevitably political – the whole purpose of Breyer's retirement would be to ensure that his seat is occupied by a Democrat. And Breyer's new book is a manifesto against the idea that courts should be perceived as political. "If the public sees judges merely as 'politicians in robes'," he writes, "it can only diminish their confidence in the courts and in the rule of law itself."

I don't want to minimize the concerns Breyer expresses in his book. Justice is right in many things. Courts play an important role in upholding the rule of law and a widespread belief that the courts pose political risks that create a public backlash that destroys the functioning of the judiciary.

But Breyer has to grapple with the possibility that Democrats will increasingly see the Court as a partisan institution because it has become a partisan institution. As he contemplates retirement, he has to consider whether a court already working hard to curtail voting rights will find it less political if Republicans get a 7-2 majority.

The problem that Breyer describes in his book is one of the core issues of liberalism. Jennifer Victor, Professor of Political Science at George Mason University, told me on Twitter, “Democracy comes from institutions. The problem is that more and more people are realizing that flawed institutions in the US are preventing them from achieving democracy. "

Democracy can die when our institutions collapse, but it can also die when captured by illiberal or anti-democratic forces. And Breyer is so focused on the former problem that he seems blind to the latter.

A lesson from Jim Crow

In 1993, law professor (and future Supreme Court judge) Elena Kagan published a tribute to her former boss, who passed away earlier this year.

The former boss was Justice Thurgood Marshall, the first black man on the Supreme Court and the greatest attorney of the 20th century. Marshall is best known for his legal practice on the Supreme Court – he won a unanimous decision in Brown v. Board of Education (1954) that ruled public school segregation unconstitutional – but he was also an accomplished trial attorney. Marshall spent years defending innocent black men in southern courts, often risking being lynched for doing so.

In Kagan's Tribute, Future Justice told Torres v Oakland Scavenger Co. (1988), whose opinion Marshall wrote, where the legendary civil rights attorney ruled against a man who said he was a victim of racial discrimination.

Torres implicated Jose Torres, one of 16 Hispanic plaintiffs, in a case alleging employment discrimination. Due to a typographical error by his attorney's secretary, Torres' name was accidentally excluded from an important court record. The question was whether the mistake made Torres' ability to pursue his case doomed to failure under a procedural rule that provides that the court record "identifies the party or parties appealing".

Although Marshall's opinion recognized that the rule required a "hard result" in Torres' case, he ruled against him nonetheless.

Kagan, who was Marshall's clerk when Torres was ruled, says she "asked Justice Marshall to vote for Torres," but Marshall refused.

"In our conversation, the judiciary referred to its own years in which it asserted civil rights claims," ​​wrote Kagan in her homage to her late boss. "All you could hope for, he observed, was that a court didn't rule against you for illegitimate reasons. You couldn't hope and you had no right to expect a court to bend the rules in your favor."

Marshall's teaching to his young employee was: "It was the very existence of rules – along with the obligation of the judiciary to obey them – that best protected unpopular parties."

Thurgood Marshall (above right) was the first black man to serve on the Supreme Court.

Bettmann Archive / Getty Images

In a broader sense, Marshall understood the same idea that Victor shared on Twitter: Liberal democracy depends on institutions. And it depends on these institutions behaving in predictable ways, as set out in established rules. As Breyer writes in his new book: “By law, sauce for the goose is sauce for the beholder; The same applies to the public's willingness to accept court decisions with which it does not agree. The rule of law is not a meal that can be ordered a la carte. "

But Marshall's lesson to Kagan also showed a weakness in the heart of liberal democracy. For example, imagine a white supremacist whose goal is to maintain segregation and rule of only whites in Jim Crow South. One way to do this is to undermine the rule of law in its entirety – tearing down institutions that could enable blacks to gain political power.

The other way to maintain a white supremacist state is to work within the system. Write a constitution that forbids blacks from voting. Choose racist judges who interpret the law to uphold white rule. Create procedural rules that are neutral at first glance, but are intended to deny disadvantaged groups legal relief. Appoint Supreme Court justices who will crush federal civil rights laws to thwart white supremacy.

In other words, liberals must constantly wage war on two fronts. You need to support institutions that can be conquered and used against liberal democracy, while working within the system to control those institutions. Opponents of liberal democracy can meanwhile either win through these institutions or through demolition. In the natural state, the strong man always wins.

Breyer seems to be betting that the risk of decreased public confidence in a particular institution – the judiciary – outweighs the risk of letting Trumpy Republicans conquer that institution. I think he's wrong. But he is absolutely right to warn liberals not to be too quick to weaken the institutions on which liberalism depends.

Why does Breyer fear a weaker Supreme Court?

Breyer's book seems motivated by opposing left-wing calls for Supreme Court reform, but it also contains a much broader theory about the role of the courts in a liberal democracy – and how courts gain the public credibility that they need for this role.

The judiciary has a long history that includes some early lows, such as President Andrew Jackson's refusal to obey an 1832 decision to protect the rights of the Cherokees (Jackson eventually sent federal troops to force the Cherokees to Oklahoma pulling what is now known as the trail of tears).

As our nation matured, Breyer believed that the public developed more respect for the Court of Justice and that presidents became increasingly inclined to obey their decisions. President Harry Truman's decision to pursue a war opinion that prevents him from taking control of privately owned steel mills is a high point in Breyer's narrative.

Much of Breyer's portrait of the story is controversial. He paints the eventual failure of Jim Crow South's massive resistance to Brown against the Board of Education as a triumph for the court. But the Brown decision did very little in the deep south until Congress sought separation from the 1964 Civil Rights Act. On the eve of this bill being passed a decade after Brown, only one in 85 southern black children was in incapacitated school.

Breyer also offers unexpected praise for Bush versus Gore (2000), or at least for the consequences of that decision. With highly dubious legal considerations, Bush bestowed the presidency on George W. Bush. Breyer was one of four dissidents in the case.

But as Breyer notes, "Despite the enormous stakes, despite half the country's belief that the court was misguided, the Americans accepted the majority stake without violent protest." Former Vice President Al Gore, who is still believed by many to have won the 2000 elections, told his supporters not to "ruin" the Supreme Court. Breyer writes of Bush: "Accepting the decisions of the Court of Justice, respecting these decisions, even if one considers them wrong, has practically become a habit."

In Breyer's eyes, this respect for court decisions – even in wrongly decided cases – seems to be an unalloyed good. Over time, he writes: "The American people … have gradually adopted the custom and habit of respecting the rule of law, even when the 'law' contained court decisions that they strongly disagreed with." 39; protect the basic constitutional rights of individuals even in times of war. "

For Breyer, an occasional bad decision, even an extremely consistent one like Bush's, is a small price to pay for maintaining an institution that can prevent elected officials from trampling on our constitutional rights.

But what if the court is hostile to those very rights? For example, what happens when decisions like Bush become routine and the court frequently intervenes in elections to appoint candidates who belong to the same political party as the majority of judges? What if the Supreme Court dismantles what remains of the voting law (most of it has already been destroyed), opening the door to the repression of Jim Crow voters? What if the Court of Justice prohibits state supreme courts or Democratic governors from blocking Republican-drawn gerrymanders, which four judges have already signaled they might be ready to do?

The most troubling provision of Georgia's new electoral law allows the state's Republican-controlled legislature to effectively take control of local electoral bodies, which have the power to disqualify voters and close polling stations. What if Georgia Republicans close half of the counties in the Democratic stronghold of Atlanta and the Supreme Court takes no action as tens of thousands of Democratic voters give up in frustration instead of waiting in long lines to vote?

"A judge's loyalty is to the rule of law, not to the political party that helped secure his appointment" – Justice Breyer

I presented a version of these questions to Breyer in a lecture he gave at Harvard Law School in April (Breyer's book is derived from that lecture, and Harvard allowed members of the public to put questions to the judiciary).

"Should we accept the suggestion that the public acceptance of court decisions is good per se?" I asked Breyer. I have given a few examples of cases in which it might be appropriate to oppose the decision, such as when the Supreme Court “dismisses our voting rights so that we are no longer able to elect a government that is not from the same political party is run that controls the Supreme Court. "

Breyer's answer to my question was twofold. The first was a warning about what can happen if the public turns away from accepting court decisions. "Turn on the television," he warned, "and see what happens in countries that are trying to forego the rule of law based on respect for court decisions."

Then he seemed to admit that there might be circumstances in which such respect should be given up, but only if those circumstances were really exceptional. "What about Hitler?" Breyer asked rhetorically before denying anyone currently in court reaching this bar – "We don't have Hitler."

No serious person would argue that, for example, Brett Kavanaugh or Amy Coney Barrett are the moral equivalent of a Nazi. But Breyer is asking us either to accept a Supreme Court that could consolidate the Republican Party's power or to deny that we have such a court right now.

If the former is true, he should explain why it pays to uphold the "rule of law" when people have no control over who writes the law. If he says the latter, I hope he is right. However, should he allow his Supreme Court seat to be occupied by another Clarence Thomas or Neil Gorsuch, both of whom have called for extraordinary new restrictions on voting rights, he may not stay correct for long.

Who's to blame?

I will confess that one reason I find Breyer's new book so frustrating is because it distracts arguments that the judiciary should be held accountable for the public's perception of partiality and instead places some of the blame on me.

"We have seen a gradual change in the way the media, along with other law-speaking institutions, understand and represent the judicial institution," writes Breyer in a section to explain why his vision of "the rule of law." "is threatened. “A few decades ago, few of these reporters and commentators would have mentioned the name or political party of the president who had appointed a judge when reporting a decision. Today the media do this of course. "

It's not entirely clear whether Breyer is correct in how the press treated the court, at least when it comes to politically charged cases. The day after Roe v. For example, Wade (1973) noted in the New York Times that President Richard Nixon was against "liberalized abortion policies" before adding that "three of the four judges Mr. Nixon appointed to the Supreme Court voted with a majority. "

Even though Breyer criticizes journalists who "systematically label judges as conservative or liberal," the Times described a landmark 1937 decision that ended the court's opposition to the New Deal as significant, also because five judges had come together, to make "the new" liberal "Supreme Court majority."

I can't talk about why many modern Supreme Court reporters tend to refer to judges by noting who appointed them, what party they belong to, or whether they are "liberal" or "conservative". But I can speak for myself. I do this because it is my job to describe the Supreme Court as accurately as possible, and I believe the most accurate way to do this is to portray the judges as people whose policies and ideologies matter.

For example, I agree with Senate Minority Chairman Mitch McConnell that it is very important whether Obama candidate Merrick Garland or Trump candidate Neil Gorsuch sit on the Supreme Court. I also agree with Republicans that the appointment of Trump nominee Amy Coney Barrett to the court makes it more likely to make decisions in favor of the GOP than if Biden filled the post opened by the death of Judge Ruth Bader Ginsburg.

I believe Republicans have correctly identified Gorsuch and Barrett as judges who are likely to reach conservative conclusions in future decisions. I believe Republicans have also correctly identified Garland as someone who is likely to make liberal decisions in future cases. I think Republicans were also right that anyone Biden nominated would be far more liberal than Barrett.

And in case that is not yet clear, I also believe that it is very important whether Breyer is replaced by a Democrat or a Republican.

To be fair, Breyer is not really trying to defend the unjustifiable claim that Gorsuch did not take a "conservative" approach or that Ginsburg was not "liberal" in politically charged cases that split the court. Instead, he exempts his colleagues by arguing that they are acting entirely in good faith: "My experience of more than thirty years as a judge has shown me that anyone who takes the legal oath takes it very seriously," he writes .

There is no reason to doubt the good faith of someone like Gorsuch, who, in my opinion, honestly believes he is applying "the law" in making decisions that are consistent with the Republican Party's preferred outcome on any given case.

Stephen Breyer, Supreme Court Justice, was seen during Senator Edward Kennedy's memorial service in 2009.

Chip Somodevilla / Getty Images

But, as Julian Davis Mortenson, a professor at the University of Michigan Law School, said on Twitter, "If you are right, as you understand, it may involve using a methodology that produces predictably biased policy outcomes," as well as "relying on that." support what makes sense here ". Intuitions that flow from your political commitments, maybe even without your realizing it. "

The thing about Supreme Court judges is that they are chosen by partisan presidents, typically from a pool of seated judges with long records reflecting their tendencies towards liberal outcomes, conservative outcomes, or a mixture of both. In other words, presidents don't have to search for partisan hacks to find candidates who are likely to decide cases the way they want. All you need to do is find candidates with verified records of reaching decisions – all in good faith – that the President's party approves.

Even so, it is true that modern presidents tend to better identify judges who share their ideology than presidents from a few decades ago. By the time the Breyer-lauded Steel Seizure case reached the Supreme Court, all nine judges had been appointed by either Truman or Franklin Roosevelt, both Democrats. Yet six of these judges voted against Truman's position. Three people appointed by Nixon dropped out of abortion with him. When the Supreme Court decided to end the sabotage of the New Deal, four of the five judges had been appointed by the majority of Republican presidents.

In fact, it wasn't until 2009 that the Court had two Republican candidates – Judge John Paul Stevens and Judge David Souter – who usually voted with the Court's two Democratic candidates in highly charged cases. (For example, Stevens and Souter disagreed on Bush versus Gore.)

However, something significant changed in 2010 when Stevens retired and was replaced by Kagan. For the first time in US history, the court had a contiguous block of five Conservative Judges, all appointed by one party, and a block of Liberal Judges, all appointed by the other party. Today the court has a Conservative majority of 6-3, but the same partisan pattern still persists.

So if journalists are referring to judges more politically than they were a few decades ago, it is likely because the court is literally more partisan today than ever before.

De-politicizing the Court of Justice – and restoring democratic norms – will not be easy, and may not be possible

One of the most influential books of the early Trump years was Steven Levitsky and Daniel Ziblatt's How Democracies Die.

When modern democracies fail, the two Harvard professors write, they usually fail without the drama of a military coup or a successful coup. Instead, they die "not by generals but by elected leaders … who undermine the very process that brought them to power". Often this process happens “slowly in barely visible steps”.

Steps like the Supreme Court, which is killing much of the electoral law and paving the way for states to pass voter suppression laws that the Court then upholds.

A warning sign that a democracy is in trouble is when leaders begin to abandon informal norms that are not enshrined in any law but are no less important to liberal society than the rule of law or individual rights. "Two fundamental norms (the) have maintained America's control and balance in ways we take for granted," write Levitsky and Ziblatt, "mutual tolerance, or the understanding that competing parties accept one another as legitimate rivals, and forbearance." or the idea that politicians should withhold their institutional prerogatives. "

The current US Supreme Court, headed by Chief Justice John Roberts, pictured this year.

Erin Schaff / AFP via Getty Images

A president shows mutual tolerance when he peacefully cedes power after losing an election. A legislature shows mutual tolerance when accepting the outcome of that election and not trying to overthrow it. Citizens show mutual tolerance when they peacefully accept that their leader has lost without taking violent steps to bring them back to power.

Similarly, senators are lenient in following the normal process of approving judicial candidates for a president, even if that president is a member of the opposing party. Judges are lenient when they respect and continue to apply legal precedents, including those they disagree with.

In other words, American democracy is in great trouble. Republicans at all levels have given up the norms of mutual tolerance and forbearance, which Levitsky and Ziblatt say are the glue that has held our democracy together.

The most benevolent reading of Breyer's decision to scold his liberal colleagues at a time when American democracy is being jeopardized by conservatives is that he wants to uphold the very norms that Levitsky and Ziblatt praise as essential to maintaining democracy. While Republicans showed no indulgence by giving Merrick Garland a confirmation hearing and vote, Democrats can show indulgence in not taking revenge by adding seats to the Supreme Court.

However, there is no norm against judges announcing their resignation when a president of their own party is in office – just ask ex-Judge Anthony Kennedy. And to the extent that Breyer tries to pressure his party to adhere to norms that the opposing party rejects, he is likely to be fighting a losing battle.

In a 2018 interview with Washington Post's Matt O’Brien, Ziblatt warned that a death spiral could be inevitable if a major political party abandons norms such as forbearance and mutual tolerance. In every country he's studied, Ziblatt said to O & # 39; Brien: "No matter how long the (party that respects the norm) holds out, at some point they will respond to the deed." Ziblatt sagte auch, er könne an keine Nation denken, die diesen Kreislauf durchbrochen habe.

Dies deutet darauf hin, dass Amerikaner, die daran glauben, ein Spielbuch schreiben müssen, wenn die amerikanische Demokratie überleben soll, was niemand anderem gelungen ist. Es bedeutet, dass wir teuflische Entscheidungen treffen müssen, wann Institutionen erhalten und wann Institutionen geschwächt werden sollen, die sich gegen die Demokratie wenden. Und es bedeutet, dass wir diese Entscheidungen trotz interner Meinungsverschiedenheiten unter den Liberalen treffen müssen, welchen Weg wir einschlagen sollen.

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