In his various media appearances to promote his new book, “Making Our Democracy Work: A Judge’s View,” Justice Stephen Breyer has taken every opportunity to discuss the history of and the misconceptions about the Supreme Court. In particular, he has emphasized his view that public opinion does not, and should not, shape public opinion. But Breyer’s assertion that the Supreme Court does not make political decisions is both naïve and disingenuous.
In an interview with the Wall Street Journal, Breyer went further to say that he and his fellow justices are not ruling based on political pressure. “All nine of us think we’re following the same Constitution that was there in 1790,” explained Breyer. According to Breyer, public opinion has no place in their consideration of the Constitution.
But surely he cannot believe that he and his fellow justices live in a vacuum, immune to the pressures of public opinion. If anything, his interest in the history of the Court has introduced him to the idea that prevailing social trends and political theories inevitably make their way into judicial rulings.
At a talk in Cambridge on September 30 for the Harvard Book Store, Breyer addressed this point. “It doesn’t work to decide things politically,” said Breyer. “Dred Scott was decided politically. Roger Taney probably thought he was avoiding the Civil War.”
By referencing one of the worst decisions in Supreme Court history, Breyer presented the reasoning behind leaving politics out of decisions, but not the proof that politics do not play a role today. Why does he not mention the recent news that justices are increasingly likely to select clerks that have the same political leanings? And why does he simply ignore the increasing evidence of polarization on the court?
If anything, the major upcoming cases indicate that political influences on the court will become even more apparent in the new term. As the Times shows, the cases chosen for oral argument this year involve a surprising number of corporations. This points to the possibility of more controversial, and obviously political, decisions such as last year’s ruling on the Citizens United case which invalidated major portions of the campaign-finance reform.
Subtle hints in his new book indicate that perhaps Breyer is only feigning his ignorance of Supreme Court politics. Lincoln Caplan, in an opinion piece for the New York Times, points out that Breyer’s new book indicates that “the judicial activism of Chief Justice John Roberts and the conservative majority [are] a major source of apprehension for Justice Breyer.”
Perhaps the problem is that Breyer feels the need to justify the Court’s existence in a time when of increasing dissatisfaction with its members. There is more talk now than ever about setting term limits for justices, and more states are considering holding elections for their state Supreme Courts.
By refusing to acknowledge the political and social influences upon the Court, Breyer tries to persuade the public that he and his coworkers are just nine men and women doing their best with the Constitution they have. But this faked naivety could also stop Breyer from involving himself in major discussions about the future of the Court and how to decrease the rampant polarization. After all, if he cannot acknowledge the problem, there is little he can do to help solve it.
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