Justice Breyer Still Doesn’t Understand What The Supreme Court Does These Days – Above the Law

Most
of
the
buzz
around

retired
Justice
Stephen
Breyer’s
exclusive
CNN
interview
revolves
around
his
comment
warning
former
colleagues
that
some
recent
opinions
will
“bite
you
in
the
back.”
Ever
the
cautious
and
responsible
jurist,
Breyer
doesn’t
say
turning
the
Supreme
Court
over
to
naked
ideologues
will
do
the
biting
but
“writing
too
rigidly.”

If
this
was
meant
as
a
euphemism,
it
falls
short.

But
while
this
back-biting
pull
quote
has
folks
talking,
the
rest
of
the
interview
reveals
that
Justice
Breyer
still
doesn’t
seem
to
get
how
the
Supreme
Court
works
these
days.
Breyer
placed
this
blissful
ignorance
on
full
display
during
the
interview:

“What
you
do
is
what
I
learned
from
(Justice)
Arthur
Goldberg
when
I
was
his
law
clerk,
and
I’ve
tried
to
live
up
to
it.
And
I
learned
it
as
well
from
Sen.
(Ted)
Kennedy,
when
I
worked
for
him,”
Breyer
said.
“You
do
your
best,
you
know,
and
maybe
people
will
agree.
And
maybe
they
don’t.
And
maybe
you’ll
win.
And
maybe
you’ll
lose.
And
then
what
you
do
is
you
think
about
it
for
a
while.”

“Go
on
to
the
next
thing,
so
that
you
can
do
a
decent
job
on
the
next
thing,”
he
added.
“And
just
keep
going.”

Just
do
your
best
and
maybe
you
win
or
maybe
you
lose?
That’s
the
message
behind
his
work
on
the
Court?
The
body
charged
with
safeguarding
the
rule
of
law?

Here,
let’s
put
that
content
in
a
more
appropriate
setting:

Because
it
is
absolutely
not
a
message
befitting
a
Supreme
Court
justice
holding
the
line
against
injustice.

And
this
defines
the
tragedy
of
Stephen
Breyer.
Because
in
reality,
he
was
exactly
what
a
Supreme
Court
justice

should
be,
stuck
in
an
era
where
that’s
just
not
what
the
Supreme
Court’s
all
about.

“And
you
say
did
I
like
this
Dobbs
decision?
Of
course
I
didn’t.
Of
course
I
didn’t,”
the
retired
justice
said,
his
voice
rising.

“Was
I
happy
about
it?
Not
for
an
instant.
Did
I
do
everything
I
could
to
persuade
people?
Of
course,
of
course.
But
there
we
are
and
now
we
go
on.
We
try
to
work
together.”

Good
heavens,
this
guy
would
bring
a
gift
basket
to
a
gun
fight.

How
much
“working
together”
went
down
this
Term?
Breyer
served
with
Republicans
like
O’Connor
and
Souter
who
approached
the
job
willing
to
negotiate
in
good
faith
and,
occasionally,
temper
their
opinions
to
forge
half-measure
compromises.
Justices
like
Scalia
or
Thomas
demanding
maximalist
stances
on
everything
and
railing
against
long-settled
precedent
that
they
didn’t
like
must
have
felt
like
outliers
to
Breyer.

But
they
were
canaries
and
the
mine
is
now
teeming
with
toxic
fumes.

“Working
together”
is
a
one-way
street.
Justice
Kagan
has
sided
with
conservatives
for
years

to
build
a
record
of
respect
for
precedent
even
when
it
cuts
against
her
core
values
just
to
watch
the
conservatives
jettison
decades
of
precedent
on
a
whim
once
the
tables
turned.
All
it
earned
her
was
the
right
to
call
her
colleagues
hypocrites.
Combined
with
around
2
bucks
that
will
get
her
a
cup
of
coffee.

The
collegiality
of
the
Supreme
Court
is
all
form
and
no
substance
at
this
point.
They’re
quick
to
brag
about
small
talk
over
lunch,
but
there
hasn’t
been
a
substantive
constitutional
decision
that
bears
the
markings
of
prudent
compromise
for
years.
More
than
half
the
justices
came
to
the
Court
determined
to
rewrite
the
nation
tossing
text,
precedent,
and
even
relevant
U.S.
history
aside
to
elevate

medieval
pamphleteers.
Breyer
may
wish
for
a
Supreme
Court
dominated
by
his
brand
of
conscientious
judicial
reasoning,
but
if
wishes
were
horses,
everyone
would
ride…
to
a
ballot
box
because
we’d
still
have
a
Voting
Rights
Act
to
speak
of.

Bringing
us
to
the
ever
annoying
“leak”
discourse:

Breyer
also
condemned
the
leak
earlier
this
year
of
the
draft
opinion
of
the
decision
overturning
Roe,
saying
the
unprecedented
breach
of
court
protocol
“was
very
damaging.”

“Was
there
an
earthquake
inside
the
court?”
Wallace
asked.

“An
earthquake?”
Breyer
responded.
“It
was
very
damaging
because
that
kind
of
thing
just
doesn’t
happen.
It
just
doesn’t
happen.
And
there
we
are.”

It’s
telling
that
the
justices
are
united
in
condemning
the
leak
but
not
a
single
one
of
them
have
offered
a
reason

why
other
than
it
being
a
break
from
tradition.
Some
comments
nod
toward
early
leaks
frustrating
ongoing
negotiations
—
which
was
certainly
the
hope
of
whichever
conservative
leaked
it
—
though
you’d
be
hard
pressed
to
get
a
single
justice
to
swear
under
oath
that
the
opinion
was
seriously
up
for
discussion
at
that
point.
These
weren’t
early
memos
circulating
around
the
Court,
it
was
a
fully
formed,
lengthy
opinion.
It
was
done.
None
of
these
justices
can
credibly
claim
it
wasn’t.

And
once
again
we
come
back
to
decrying
the
leak…
“just
because.”

Other
justices
have
also
blasted
the
leak
– including
Justice
Elena
Kagan, who
earlier
this
month
called
it
“horrible”
–
and public
opinion
of
the
high
court
worsened after
it
occurred.

Hm.
I
wonder
if
the
Court
did
anything
else
—
maybe
some
“substantive
decision”
—
that
could
be
responsible
for
its
unpopularity?
Look,
just
because
the
justices
engage
in
this
stupid
fiction
doesn’t
mean
anyone
else
should.
CNN
is,
ostensibly,
a
news
outfit!
It
borders
on
journalistic
malpractice
to
write
a
sentence
implying
that
releasing
an
opinion
a
few
weeks
early
shook
the
public
more

than
the
actual
opinion
itself.

As
posted
on
Reddit:

The
country
would
be
a
better
place
if
Justice
Breyer’s
vision
of
the
Supreme
Court
reflected
reality,
but
it
doesn’t.
And
while
he’s
obviously
smart
enough
to
recognize
when
decisions
will
bite
back,
it
seems
like
he
hasn’t
quite
shaken
the
misconception
that
good
faith
efforts
still
matter
on
this
Court.
They
don’t.

And
they
haven’t
for
a
long
time.

An
earnest
institutionalist
might
think
the
country
is
better
off
if
the
Court
sells
the
public
on
the
idea
that
they’re
all
friendly,
even-handed
people
just
working
together
behind
closed
doors
to
make
everything
work.

But
the
emperor
has
no
robes
anymore.

Everyone
knows
that’s
not
how
it
works
these
days.
And
not
because
of
any
leak,
but
because

Alito’s
blasting
vitriol
all
over
the
place.
Except
for
John
Roberts,
the
conservatives
on
the
Court
have
all
but
taken
out
billboards
advertising
their
us
vs.
them
approach
to
rewriting
the
Constitution.
No
amount
of
collegiality
spin
is
going
to
fool
anyone
anymore.

For
institutionalists
like
Justice
Breyer,
the
first
step
is
admitting
the
institution
has
a
problem.
Thankfully,
it
seems
like
we’re
seeing

some
early
signs
that
this
message
might
finally
be
coming
through.

And
the
second
step
is
realizing
that
“you
win
some,
you
lose
some”
is
never
an
acceptable
philosophy
when
millions
of
people
are
watching
their
rights
disappear.

Breyer
warns
justices
that
some
opinions
could
‘bite
you
in
the
back’
in
exclusive
interview
with
CNN’s
Chris
Wallace
[CNN]

---

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