Facebook Twitter

Perspective: The radical reasonableness of retiring Justice Stephen Breyer

Most judges are committed to making democracy work, even if breathless headlines suggest otherwise.

SHARE Perspective: The radical reasonableness of retiring Justice Stephen Breyer
Supreme Court Associate Justice Stephen Breyer, center, reads the book “How to be a Pirate” by Cressida Cowell to visiting fourth-grade students from Amidon Elementary at the Supreme Court Library, April 12, 2007 in Washington.

Supreme Court Associate Justice Stephen Breyer, center, reads the book “How to be a Pirate” by Cressida Cowell to visiting fourth grade students from Amidon Elementary at the Supreme Court Library, April 12, 2007, in Washington.

Pablo Martinez Monsivais, Associated Press

As Justice Stephen Breyer announces his retirement and President Joe Biden readies a replacement, I’m struck again by the distance between the political debate surrounding the Supreme Court and its day-to-day work.

If you follow the court in the political news, you’ll have a series of breathless headlines in your mind. Did Justice Gorsuch refuse to mask? Should Justice Thomas recuse himself because his wife is a conservative activist? What about court-packing?

If you follow the court as a lawyer, you might still be pondering its most recent opinion, in which Justice Barrett (the stolen seat?) moved the court decisively rightward by ruling that:

… dual-status military technicians do not count as members of a uniformed service for purposes of calculating their Social Security benefits under 42 U.S.C. § 415(a)(7)(A)(III). 

That sort of apolitical decision is what the court’s really about: the careful analysis of legal questions that will never make the headlines but still need answering so the lower courts, where millions of disputes are resolved annually, can do their crucial work. And much of that analysis depends one way or another on a single very practical question, and one Breyer has thought a lot about:

What should courts do when the law’s not clear?

In most legal arguments, at least one side has an interest in making the law unclear, and lawyers excel at finding ambiguity in texts any normal person would consider obvious. (A classic example: a sign in the park reads, “No motor vehicles,” and the lawyer says, “What about electric wheelchairs?”)

Conservatives’ textbook response — my response, for the most part — is: Look to the law’s text. Read the law really, really carefully, and you’ll often find that it answers your question. You may not like the answer, but if you’re a judge it doesn’t matter what you like. You’re supposed to do what the legislature told you. If the wheelchair is in fact a “motor vehicle” it stays out of the park, and fixing that problem is not your job.

In his time on the bench, Breyer had a different response, one he articulated in his book “Making Our Democracy Work” as well as a speech I heard him give at my law school. Of course judges should obey the legislature, but if you had a butler, would you want him to do what you said or what you intended? “Get the motor vehicles out of the park, Jeeves; they’re making a racket and scaring the pigeons.” Jeeves tosses the motorcyclist, but the pigeon-friendly electric wheelchair stays, and Jeeves never imagines he’s disobeying you by permitting it.

I recall one student at the speech asking Breyer, in effect: What if Jeeves starts disobeying us? And how can we make disobedient courts obey the legislature if they’re allowed to rewrite laws based on their subjective notions of what the legislature “really meant”?

Breyer answered: The real constraint on judges has never been the law’s text; it is their training as members of the legal profession. Going to law school, clerking for a judge, practicing, socializing with other lawyers — all these things teach judges how they’re supposed to behave. If you choose the judges well at all, their obedience to the legislature will be automatic, and if they get caught intentionally rewriting laws they’ll be scorned for it.

In short, Breyer’s theory is about trust. He thinks courts can trust legislatures to want reasonable things and not throw electric wheelchairs out of the park. He thinks we can trust the courts themselves not to misuse their freedom, and if they do, we can trust the judges’ friends to tell them to cut it out. According to Breyer, we — the people, the legislators, the judges and their friends — are all fundamentally on the same team. 

We’re all trying together to “make our democracy work.”

If this picture seems fantastical to you, well, that’s where the conservative legal movement came from, a movement that did not exist when Breyer was forming his judicial views at Harvard in the early 1960s. Legal conservatives argued (as Robert Bork put it) that federal judges and their friends were “the white wine and Volvos set”— that they wanted different things from normal people and, unless constrained by the original meaning of the law’s text, would pursue different agendas from the normal people and their legislators.

The conservatives were right, and today even liberal judges tend to make more originalist and textualist arguments than judges made 60 years ago. It’s a change for the better, and one of many battles legal conservatives have won. But if I don’t mourn the false assumption that judges’ desires will always align with legislators’, I do miss an America where that assumption was plausible; where more people did seem to be on the same team; where more Harvard law students were Eagle Scouts like Breyer or served in the army like Breyer did; where the words “our democracy” had a meaning beyond “something Democrats might say to accuse Republicans of being antidemocratic.”

There’s good news, though. Even today, if you look at the way courts function when they’re doing their best work, when they’re away from the headlines and just trying to resolve the disputes in front of them, I think you’ll find a lot of Breyer’s spirit (though often not his philosophy): judges who trust each other, whose obedience to the law comes first, who are working hard to get it right and assume other people are generally doing the same.

In other words, you’ll find lots of people like Breyer himself, whose picture could appear in legal dictionaries next to the word “reasonable,” and if his faith in other Americans’ reasonableness is misplaced, I can forgive him. There are worse sins than overestimating how many people are as well-intentioned as you are.

 It might not be possible for trust like that to govern a country of 330 million, but where it works it really works, and it’s worth preserving.

Alan Hurst is a lawyer in Salt Lake City.