Stephen Breyer's Delusions of an Apolitical Court
In Plato’s Republic, Socrates broaches the disturbing possibility that it may be necessary to lie to the people for their own good. The “opportune falsehood,” Socrates explains to his pupil, is that everyone’s soul has either gold, silver, or brass in it, and it is because of this admixture that the city’s inhabitants are assigned to their different ranks and responsibilities. You can see the reasoning: If you think that most people will not be able to understand the real justification for the social order, but that they need to accept that order, then your best course is to fool them into complying with it. Best to “deceive the rulers, if that be possible,” Socrates says, “and at any rate the rest of the city.”
Known as the theory of the “noble lie,” this passage is surprisingly relevant to the United States Supreme Court. Fewer and fewer people are buying our own national myth that the court dispenses law and justice without crossing the line into partisanship and politics. For some, this development only makes it the more necessary to hoodwink the people into believing that the Supreme Court soars above politics; this particular noble lie is essential precisely because, having worked so well for so long, it is now under threat. One of the leading proponents of this view sits on the Supreme Court himself—and is refusing to leave.
Stephen Breyer, who turned 83 this year, was born in San Francisco, went to Stanford and Harvard Law School, and taught law for a while. He was, he noted a few years ago, the first Harvard Law professor to have to earn tenure by writing a scholarly article—which he did, on the subject of copyright, before establishing a profile as an administrative law specialist with a technocratic bent and then passing into the judiciary. Appointed to the First Circuit Court of Appeals by Jimmy Carter in 1980, Breyer ascended to the Supreme Court on the nomination of Bill Clinton in 1994—more than 27 years ago.
In April, Breyer delivered a much remarked upon address at Harvard Law School in honor of his late colleague Antonin Scalia, which has now appeared as The Authority of the Court and the Peril of Politics. Most of the short pamphlet warns against seeing the court as “political.” The court acts as a “check” against the other branches, Breyer teaches us, holding the president and Congress within constitutional and other legal constraints. Enjoying neither the power of the purse nor the sword, however, the court’s authority “depends on trust, a trust that the Court is guided by legal principle, not politics.”
Breyer’s book comes at a pivotal moment. After the tempests that the death of Justices Scalia and Ruth Bader Ginsburg and the retirement of Justice Anthony Kennedy unleashed—all of them replaced by Donald Trump’s nominees—liberals are increasingly treating the Supreme Court less as an empyrean summit of justice above politics than as the highest political prize in our “democracy.” With a conservative majority continuing to dismantle voting rights through decisions like Brnovich v. Democratic National Committee and positioned to do harm on issues such as abortion rights and gun control in the coming term, liberals finally regard the Supreme Court as a problem that has to be dealt with. Meanwhile, Breyer’s own decision not to step down from the court when Democrats are in a position to replace him—to do so would seem “political,” he worries—has been met by apoplectic responses from commentators and the public more generally. And though the Supreme Court’s professional chroniclers have responded with their familiar reminder that the court’s decisions could have been even more painful, polls nonetheless indicate that trust in the institution is plummeting, and calls to add liberal justices or strip the court of its authority continue to gain mainstream appeal.
Why, then, is it “wrong,” in Breyer’s view, “to think of the Court as a political institution”?