Jurisprudence

Justice Breyer on Whether Judges Get More Liberal as They Get Older

Justice Stephen Breyer in 1994 and 2018.
Stephen Breyer. Photo illustration by Slate. Photos by CNP/Getty Images and Chip Somodevilla/Getty Images.

As part of Slate’s project on the 80 most influential Americans over 80, we spoke to some members of the list to reflect on aging, work, and life in their ninth decade and beyond. Slate spoke with Supreme Court Justice Stephen Breyer by Zoom last week. The conversation has been edited and condensed for clarity.

Dahlia Lithwick: I am noticing, Justice Breyer—and I am 53—I’m noticing that I have to write things down. Like, I’m getting old. Has the way you are working now changed? Both over the years, and particularly in COVID?

Advertisement

Stephen Breyer: Yes, of course. COVID or no COVID. If I am going to be involved in the cooking process for a week, I write the menus down on the refrigerator and I put them up with a piece of Scotch tape and then I try to stick to them because I think it’s a good combination. If I’m going to write something, as I was just doing, I will get a yellow piece of paper here, I’ll write down my outline, and I’ll go back. I hate to tell you, but what this is is the number of things I’m going to do today. I’m going to call Amazon to worry about Christmas presents. I’m going to buy some wine stoppers for my wife’s stocking. I’m better off writing those down.

Advertisement
Advertisement
Advertisement

Have you always been a writer-downer?

No, but my mother was.

My parents, I think, are exactly your age, and they are really having a weird lockdown renaissance of Zooming into lectures, going all sorts of places they might not have gone. Is that your experience? Are you just too busy?

The thing that makes that difficult is we’re doing our normal court work. In fact, COVID cases come along, and there are a few more of them that we have to decide quickly. We have a telephone that is secure. And we do our oral arguments. People have to listen harder and be more direct in their questioning—that’s all good. But all of that takes time, and we have to write opinions. So I have some time to watch television, which I don’t otherwise do. We’re into the second season of M.A.S.H., and it’s very good. I’m doing a lot of cooking. So is Joanna [Freda Hare, Breyer’s wife]. I’ve discovered it isn’t as much fun as I once thought, but it’s fun up to a point.

Advertisement
Advertisement

You don’t have the Marty Ginsburg Flying Ginsu knives?

No, I don’t. Absolutely not. Nope. Judge [M. Margaret] McKeown put out a 19th Amendment cookbook. So I looked at the one that Ruth Ginsburg put in, and it was one of Marty’s recipes, I’m sure. It looked so complicated. I thought, I’m not going anywhere near it.

Are there other ways things have changed?

We have staying with us three grandchildren, my daughter, and a very nice au pair. We’ve been together since March. The grandchildren learn a little bit more about their grandparents, and I hate to say it but the grandparents begin to learn even the grandchildren aren’t perfect. Sometimes we learn something from each other. If they start talking about some modern rap singer, I will bring back Frank Sinatra and Cole Porter, and they listen to it. “Oh, really? That’s interesting.” You can get cabin fever, and at the same time you begin to have to appreciate each other, so you do.

Advertisement

I’m going to ask you my only slightly politically valenced question. I’m always interested in the studies that show, by and large, judges and justices, over decades in their career, drift to the political left. There’s much less—at least, political scientists say—of a drift to the right. Do you have a theory? Or is there something about being a judge for decades and decades that changes the way you look at things as a judge?

Advertisement
Advertisement

Yes. Yes. Yes. I think you tend to look from 30,000 feet, say, more often than you did. On the other hand, this great wisdom you’re supposed to acquire over time does quite often express itself in something that sounds as if it came out of a fortune cookie. So there are pluses and minuses.

Advertisement

Whether it’s always to the left, I don’t know. It’s very hard to say. If you go back to the 1930s and ’40s, what you saw was a tremendous revolution in the political foundation of the country. It was the New Deal. It was the shift of power to state legislatures, who could do more to regulate, and certainly from states to the federal government. And that was viewed as the left because that was Franklin Roosevelt. And Franklin Roosevelt and Harry Truman eventually appointed every member of the court. And so when I grew up, I just thought members of the Supreme Court are all Democrats, or at least appointed by Democrats. Then soon after that came the civil rights revolution. After the court wrote Brown v. Board of Education and said that legal segregation is unconstitutional and we must have integration—nothing happened. For a year or two, nothing happened. And it wasn’t until really Little Rock and the effort of Eisenhower to send the paratroopers to bring those nine brave Black children into that white school in 1957, it wasn’t really until then that things began to happen.

You’ve heard me say this a lot, but judges are only a few thousand at most, and we’re only nine at most.

You’re saying these things get ascribed to individual jurists who move left over a career, but they’re pinging off each other. They’re pinging off history. They’re pinging off big trends.

Yeah, because the court changes very, very, very slowly over long periods of time. That’s what I think, because it’s the legal view and this sort of jurisprudential view: What is the country like? What’s this Constitution about? What is the court about? What is its proper role? Those questions will never be answered.

Are there things that you would tell your 30-year-old self to do differently? Or just tell your grandchildren?

Advertisement

What I say to them are the one or two best things that I learned from Sen. [Ted] Kennedy. First of all, the best is the enemy of the good. He didn’t make that up. But if you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first. We’re not here just to make speeches. The second thing, which I think is really of great practical value, is don’t worry about credit. Credit is a weapon. You give the other person the credit. When you disagree with someone, get them to talk about the problem. Eventually—it happens almost always—they’ll say something you agree with. Then you can say, “Let’s work with that.”

Advertisement
Advertisement
Advertisement

And that’s something we get better at as we get older? Maybe when you’re younger you want to gobble up credit and the limelight and make your speeches and die on the mountaintop?

Maybe. But also as you get older, you get more irritable.

I wonder if you would talk for a minute about mistakes you’ve made. If you have some that you can look back on and say, “I wouldn’t have done that again.”

One is I’m terrible at investing. I’d say I’ve made a lot of mistakes. But worse than that, the mistake that I continually make is worrying about it.

I know you’ve talked a little bit about term limits for justices and being willing to entertain the idea, and I know you’ve also thrown out the number 18, but that’s not a magic number for you, it’s just a number you threw out. And I’m wondering if a little bit of what’s animating your willingness to at least consider it is it’s a way to break the gridlock. It’s a way to depoliticize this. Or if it’s this notion that justices are just sitting around too long and they’re too old to do their jobs. And I ask that with all due respect.

Advertisement
Advertisement

Well, I can’t answer this question because it is too close to something that is politically controversial. I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.

Do you have a sense that we are just too quick to say everyone’s too old to do their job? And we start doing that when they’re 46?

I don’t know. I’ve thought sometimes that one virtue of China is they really respect old people.

For more with Justice Breyer, listen to this extended interview on Amicus, available for Slate Plus members only. Sign up now to listen, get member benefits, and support Slate’s work.

This is part of Slate’s 80 Over 80 series. Read the rest here, including our ranking of the 20 most powerful 80-plus-year-olds in America.

Advertisement