A sitting justice reflects upon the authority of the Supreme Court―how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it. A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”―their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions. Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity. Breyer warns that political intervention could itself further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system. Read more
Download NowI have previously reviewed three books by Justice Breyer on Amazon. I found all three to be serious discussions of important public issues, supported by extensive research, and skillfully focusing on all pertinent issues. Unfortunately, none of this masterful writing is evident in this recent book on the Court. The book suffers from two principal defects in my opinion. Here we sit with great controversy growing about the Court and whether it has run off the rails. Justice Barrett in a recent speech expressed her concern that people saw the Justices as a bunch of "political hacks." Already underway is a presidential commission charged with reviewing methods to reform the Court and reporting to the President. Yet here is an author with unique credentials to discuss any or all of these options who barely mentions one. He does make it clear that the Court's power to persuade is dependent on public trust, and too much tampering would undermine the public's trust in the Court. So do nothing? I would have been overjoyed if Breyer had discussed the only proposal I consider viable, as contrasted with enlarging the Court, imposing term limits, and instituting super majority requirements. The framers wisely vested in Congress the power to define the Court's appellate jurisdiction. During the Civil War when the Taney Court appeared to be on the verge on handing down a damaging decision, Congress stripped the pertinent element of jurisdiction until the War was over. This device requires no constitutional amendment and can be reversed by another act of Congress. It merely keeps the Court out of dangerous areas until things calm down. What does Breyer think about this?--we will never know from reading this book. The second problem with the book is that Breyer seems to be looking at the Court's recent decisions through extremely thick "rose colored glasses." He wants to convince us that a Court driven by Justices such as Thomas, Alito, Kavanaugh, Gorsuch, and even Barrett should be of no concern as it trashes stare decisis and reaches out to grab the most controversial cases to decide. Breyer talks of "minimalism," compromise, and swallowing dissent as steps the Justices can take. Those meek correctives will not solve the problem; the Court has to be replaced on the right track, and withholding jurisdiction is the most expeditious and least harmful method to accomplish this. Incidentally, I do agree with the Justice that any decision to retire should be exclusively within his discretion and when he, and he alone, feels the time is right. He has well explained his reasoning in numerous interviews and newspaper articles. I only wish he had done the same in this book.
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