Justice Stephen Breyer Lives in a World of His Own: The brilliant jurist's surprisingly (or not) weak case for the Supreme Court's historic legitimacy.

• Author: Epps, Garrett
• Position: On political books

The Authority of the Court and the Peril of Politics

Stephen Breyer

Harvard University Press, 112 pp.

Ten years in the Supreme Court press gallery leaves one with a few surreal memories. In 2012, for example, former Solicitor General Seth Waxman, arguing against an FCC fine for showing brief nudity on network TV, pointed at the marble courtroom frieze above the startled justices' heads: "There's a bare buttock there," he said, "and there's a bare buttock here." In 2011, the Kansas corrections official Margie Phelps, defending her father's homophobic Westboro Baptist Church, argued that the First Amendment covers even direct harassment unless it is "approaching an individual up close and in their grill to berate them"--leaving the aged justices visibly puzzled about why anyone would interfere with an outdoor barbecue. In 2016, Justice Clarence Thomas produced gasps in the courtroom when he broke a decade-long silence to defend the Second Amendment "rights" of domestic abusers.

And in 2012, Justice Stephen Breyer, in his unforgettable vocal mash-up of Edward Everett Horton and Mr. Rogers's King Friday XIII, told the lawyer for an American citizen tortured to death by the Palestinian Authority, "I think I have to say that you are on a weak wicket."

Breyer's legal point was well taken (the victim's family eventually lost, 9-0). Yet only Stephen Breyer, the Oxford-educated son-in-law of the Viscount Blakenham, would have bowled a cricket metaphor at an unsuspecting American lawyer.

But fast bowling is all in a day's work for Breyer, a justice like no other. I must begin this piece by confessing my deep admiration for the man's intellectual gifts, his good nature, and his idiosyncratic sense of humor. His mind is capacious, lightning fast, and unpredictable. No other justice in history, I dare say, has not only read the more than 4,000 pages of Marcel Proust's A la recherche du temps perdu in the original French, but read them twice, back to back.

While the conservative justices, by and large, won their seats as courtiers to Republican presidents, Breyer was once a congressional staffer. He knows a great deal about how legislation is actually created and implemented and does not share the majority's contempt for elected legislators. Breyer is perhaps the last major advocate of legal pragmatism--a venerable system of thought that concerns itself first and foremost not with the abstract meaning of words or the "understanding" attributed to long-dead Framers, but to the realworld consequences of a legal outcome. For Breyer, those consequences are to be assessed for their contribution (or detriment) to "active liberty," the ability of ordinary citizens to participate in democratic self-government. That liberty, he has argued in the past, is the aim of the Constitution, and interpreting its words without understanding that...