AuthorLitman, Leah M.
PositionAnnual Book Review Issue

THE AUTHORITY OF THE COURT AND THE PERIL OF POLITICS. By Stephen Breyer. Harvard University Press. 2021. Pp. 101. $19.95.


Justice Stephen Breyer (1) has written a book about the Supreme Court's relationship to politics and the merits of Supreme Court reform. (2) The book explicitly does "not delve into such issues" as whether "the nomination and confirmation processes [are] working well," whether "appointments too closely reflect partisan political divisions," or whether "the Court itself has become politically partisan" (p. 21).

Well other than that, Mrs. Lincoln, how was the play?

Because of its artificially narrow scope, the book provides an incomplete picture of the Supreme Court. That makes its analysis of Supreme Court reform incomplete too. What Justice Breyer does offer in the book are two claims--one, that the Supreme Court is not engaged in politics, and two, that the rule of law requires accepting the Court's authority to issue decisions with which people will disagree. Both claims are oversimplified, and the arguments in The Authority of the Court and the Peril of Politics carry their own potential rule-of-law and democracy problems.

This Review proceeds in two Parts. Part I challenges the book's assertion that the justices' work should not be described as political. Part II then explains why accepting all of the Court's decisions is not necessarily good for the rule of law, which means that questioning the Court's authority is not necessarily bad for the rule of law. Part II also addresses the book's implicit claim that questioning the Court's authority is among the greatest threats to the rule of law today.


    A big part of Justice Breyer's book turns on his claim that judges, including Supreme Court justices, are doing law, not politics. He insists that "politics in th[e] elemental sense is not present at the Court" (p. 52) and that " 'political' is the wrong word to describe even the more controversial court decisions" (pp. 51-52).

    The book can make these claims only because it arbitrarily interprets "politics" to exclude what many people think drives judicial decisionmaking, and expansively interprets "law" to include what everyone would recognize as political judgments. Justice Breyer uses politics to mean something like "a federal judge will vote for any policy that is favored or implemented by the political party that appointed them." (3) He describes politics as asking questions such as "Are you a Democrat or a Republican?"; "Which position is more popular?"; and "What do 'constituents' think?" (p. 52).

    But judging may still be political even if a justice does not always vote to uphold policies because they are popular or because they were enacted by the political party that appointed them. Justice Breyer does not really suggest anything to the contrary. He alludes to the idea that ideology influences judging (pp. 52-53). He acknowledges that jurisprudential views are inescapably connected to political ones, writing that "it is sometimes difficult to separate what counts as a jurisprudential view from what counts as political philosophy" (p. 57). And he even concedes that "a judge's background, experience, and personal views about the law's objectives, the Court's role, or the nation's life can make a difference" (p. 56). For these reasons, he concludes, "to suggest a total and clean divorce between the Court and politics is not quite right either" (p. 62). Yet he still insists on framing the book around the claim that judges are not engaged in politics.

    Section I.A explains why Justice Breyer's reluctant admission that judging is political better reflects reality than his protestations to the contrary. Section I.B then discusses why Justice Breyer's arguments that the justices are not political are unresponsive to concerns about the political nature of the Supreme Court.

    1. Is Judging Political? (Yes.)

      In many Supreme Court cases, the law will be indeterminate in some respects. The meaning of particular phrases (like due process, appropriate, or equal protection) will be susceptible to different interpretations, and the relevant history, practice, and precedents will be ambiguous as well. Justice Breyer knows this. (4)

      Because there will be several permissible interpretations of the various sources of law, judging is inevitably informed by ideas about what particular values mean, assessments of the weight those values hold, strands of political philosophy about what constitutes good government and civil society, and evaluations of the surrounding world, including what is good or bad about it. (5) It's fair to call decisionmaking informed by those considerations "political," and that's precisely the kind of decisionmaking that judges do for any number of reasons. I'll just discuss a few: a justice's views about what constitutes good governance, their assessments about the meaning of various abstract constitutional values, and their experience and general worldview will affect how they resolve cases.

      First, people--including the justices--interpret competing evidence and resolve ambiguity based on ideas of what good constitutional governance is. People want the world around them, and the constitutional system they are a part of, to be good rather than bad, and sensible rather than irrational. (6) Can you blame them? Part of the American constitutional ethos is the idea that the Founders were smart men who designed a system of government that should be celebrated. (7) This phenomenon is on display in Breyer's own book: writing of the Constitution generally, and of judicial review specifically, Breyer proclaims that "[t]he Constitution's framers had every right to admire their creation" (p. 8).

      Given the tendency to believe our constitutional system is sound, it would take a lot to convince a judge that the brilliant men (and women) who made the Constitution adopted a rule that required or permitted a mode of governance that the judge believes is unsound. For example, those who believe liberty would be at grave risk if unelected bureaucrats could make rules that bind private citizens will be less likely to conclude that our system of government permits such an arrangement. (8) In deciding these kinds of issues, judges end up trading on political judgments about what constitutes good governance.

      The impulse to make our constitutional system a sensible one informs other kinds of historically minded methods of interpretation, such as how to interpret past practices or how to read the Court's precedents. Consider a decision from the Court's 2020 term. Jones v. Mississippi held that the Eighth Amendment requires only that states consider an offender's youth before imposing life without parole as a sentence for juveniles convicted of homicide. (9) The conservative supermajority rejected the argument that the Court's prior cases, Miller v. Alabama (10) and Montgomery v. Louisiana, (11) required states to find (or perhaps even analyze) whether a juvenile offender was "permanently incorrigible" before imposing a sentence of life without parole. (12) To explain that result, Justice Kavanaugh wrote: "We ... rely on what Miller and Montgomery said--that is, their explicit language...." (13) By contrast, the three Democratic-appointed justices in dissent invoked the opinions' reasoning and results to reach a contrary conclusion. (14) Focusing on different parts of the Court's prior decisions allowed the two opinions in Jones to read their own views about the Eighth Amendment into the Court's precedents. (15)

      Sometimes, the impulse to interpret the constitutional system to be sensible comes out when the justices assess the implications of a legal rule, which requires the justices both to consider the likelihood that a particular event will occur and to determine what scenarios the constitutional system protects us from. Take the oral arguments in National Federation of Independent Businesses v. Sebelius, the constitutional challenge to the original minimum-coverage provision in the Affordable Care Act. (16) The government's time during oral argument was dominated by the Republican-appointed justices asking what the government might do if the Court upheld the ACA and embraced the government's theory about the scope of Congress's powers. Chief Justice Roberts asked whether the government could require people to purchase cell phones, (17) Justice Alito asked whether the government could require people to get burial insurance, (18) and so on. For his part, Justice Breyer raised the following possibility to the lawyer who argued that Congress lacked the authority to enact the minimum-coverage provision:

      [I]f it turned out there was some terrible epidemic sweeping the United States ... you'd say the Federal Government doesn't have the power to get people inoculated, to require them to be inoculated, because that's just statistical. (19) (The lawyer said that Congress had no such authority. (20))

      The justices' assessments about what risks the constitutional system guards against are political judgments in part because they turn on an analysis about whether a particular state of affairs is a sensible way of structuring a constitutional system. (21) Even if a justice is sincerely trying to answer the question "What results did the Constitution's ratifiers or Congress avoid when they adopted the relevant legal text?" that analysis allows the justice to consider whether a sensible drafter would have chosen to avoid a particular scenario. (22) So when the justices decide constitutional or statutory cases, they draw on political judgments about what amounts to a rational system of constitutional governance.

      Second, as the justices decide cases, they both identify the meaning of various constitutional values and assign relative weight to competing constitutional values. This too involves making political judgments. In the...

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