Recently, we’ve been treated to the unedifying spectacle of Supreme Court Justice Stephen Breyer hawking a printed version of a lecture he gave at Harvard last April.
One reviewer, Jay Willis, writing on the Balls & Strikes blog, notes that Breyer’s $19.95 book is roughly the same physical size as the biggest iPhone, giving it a price-to-word ratio similar to “The Very Hungry Caterpillar.”
In his hardback pamphlet, Breyer writes: “If the public comes to see judges as merely ‘politicians in robes,’ its confidence in the courts, and in the rule of law itself, can only decline. With that, the Court’s authority can only decline, too, including its hard-won power to act as a constitutional check on the other branches.”
“Hard-won.” That’s an interesting choice of words. It can only mean the court is more powerful now than it was in the past. And that, in turn, can only mean that the Constitution itself doesn’t grant the court the power it currently exercises. Otherwise, it would have possessed the power since the Founding.
While it’s great that the courts act as a constitutional check on the other branches, who performs that service for the judicial branch? Who watches the watchmen?
Thomas Jefferson famously wrote that “our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.”
Breyer is upfront about his passion for power and the privilege of his corps. But he takes umbrage at the bit about party. He writes: “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
In other words, Senate Minority Leader Mitch McConnell is a naïve fool for fighting so hard to confirm federal judges.
In late 2017, when Bloomberg Politics asked McConnell to name the greatest accomplishment of his long career in conservative politics, he said: “For me, personally, it would be Neil Gorsuch and the changes we’re making in the circuit courts.”
Elsewhere, Breyer writes of his Supreme Court colleagues: “All studiously try to avoid deciding cases on the basis of ideology rather than law.”
Willis says of this passage, with its false dichotomy and pretense of knowing things Breyer cannot possibly know, that it “exhibits a strain of naïveté that would be kind of embarrassing in an AP History essay, let alone a book by an honest-to-God Supreme Court justice.”
But I don’t think Breyer is naïve, any more than McConnell is. Rather, like any lawyer presenting a case, he puts forward the best argument he can concoct rather than revealing his inner thoughts.
In this instance, his argument is weak. Indeed, “trust us” isn’t really an argument at all. But that’s less a criticism than an observation that he, eminent jurist that he is, can’t think of a better one.
We get more insight into his private thoughts from a little quip he’s been making since at least 2010. As CNN reported this September, “He repeated his familiar mantra over the years, that the court is not composed of ‘junior varsity politicians.’ ”
So who’s the varsity? Congress, obviously, and the president, and the elected governments of our states. He’s comparing American democracy to high school athletics.
It’s a denigrating metaphor and, for that reason, a revealing one.
(Besides, the court is more like a meddling school board.)
The newest justice, Amy Coney Barrett, echoed Breyer’s ambivalence about representative government in her recent, heavily reported appearance at Kentucky’s McConnell Center, where she was introduced by McConnell himself.
Notoriously, she said: “My goal today is to convince you that this court is not composed of a bunch of partisan hacks.”
Her comment reminded me of an oft-repeated story about President Lyndon Johnson. The story is told in many different versions, but the gist is that Johnson supposedly said he didn’t want to accuse his opponent of unnatural acts with barnyard animals, he just wanted to make him deny it.
Barrett denied it and, in doing so, acknowledged that appearances were against her. But I think much of the well-earned ridicule she brought upon herself overlooked an important point. Why “hacks”? Why that particular word?
Barrett could have said, “We’re not elected politicians, chosen by the voters,” which is what she seems to have meant. But, in her prepared speech, she used a word that referred to horses for hire before it was applied to prostitutes, from which its modern usage derives.
She was probably trying to be funny. But, as Sigmund Freud recognized a century ago, humor is a screen behind which people feel comfortable revealing their true beliefs.
Joel Jacobsen is an author who, in 2015, retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at firstname.lastname@example.org.