We are at the peak of the effort to drive Justice Stephen Breyer screaming from the Supreme Court. The 82-year-old jurist is being lobbied by progressive academics, berated by progressive groups, and hounded by liberal activists. He’s being prodded, parodied, psychoanalyzed, and politicked. The aggregated effect of this will be either that he steps down in the coming weeks or that he does not. That is what the grant of Article 3 life tenure offers a man: the ability to do precisely what he decides to do, with no amount of political pressure sufficing to change that.
I tend to be of the view expressed by Noah Feldman several months ago, that pressing Breyer to step aside is affirmatively and aggressively counterproductive: The more we politicize the court and its work, the more judges and justices must perform their own neutrality. This isn’t just ego or narcissism; it is exactly the kind of institutionalism Breyer has expressed over and over throughout his career. “If the public sees judges as ‘politicians in robes,’ ” he said in an April speech that sent progressives into fits, “its confidence in the courts, and in the rule of law itself, can only diminish, diminishing the court’s power, including its power to act as a ‘check’ on the other branches.” When Breyer takes a bold public stand for neutral, technocratic judges, it’s not just because he believes that of himself. It’s because he wants us to believe that, because he thinks it’s necessary to preserve the legitimacy of the judicial branch.
His need for judicial neutrality is existential, which is why browbeating him about the fact that he is idealistic, naïve, or playing straight into Mitch McConnell’s cynical, Montgomery Burns–rubbing hands really is akin to getting the Easter Bunny or the tooth fairy in a headlock and demanding that they admit they aren’t real. And while Adam Cohen is certainly right that Breyer’s magical thinking about the grave neutrality of the court is part of the reason the court as an institution can be so blind to reality, the notion that Breyer might come round on that point, or be persuaded by its repetition in the press or in public spaces around D.C., strikes me as its own piece of naïveté. No lifelong public servant wants to be reminded that their institutional aspirations are a joke, or that their institution has morphed into a joke, or that the values they prize—of civil disagreement and working toward compromise—make them a chump. To be sure, the values of civil disagreement and working toward compromise are likely now as dead at the high court as they are in the Senate. But Breyer, like Joe Manchin, is very unlikely to be moved by being lectured about silly defunct institutional idealism. And it’s at least possible, if not likely, that both of them will be inclined to double down on the idealism in the face of mass mockery, rather than give it up.
I am not discounting the harms and violence that can be wrought when institutionalists cling to idealism. Millions of soon-to-be purged, suppressed, and discounted voters may learn as soon as the next election that the material damage to democracy that can be done by white men doubling down on one-sided idealism is incalculable. So what is to be done about the fact that Mitch McConnell very clearly counts on, and indeed extravagantly exploits, the seemingly naïve institutionalism of Democrats who keep arguing that a return to old norms is possible and desirable? McConnell has no intention of allowing President Joe Biden to replace a liberal justice if Republicans win the Senate next year. It’s McConnell’s court now. Breyer just rents rooms on it.
The alternative to asking a man to publicly renounce his institutional dreams and ideals is to do something bolder than making this fracas about a single seat. Serious discussions of structural court reform, from court expansion to term limits to jurisdiction-stripping, exist outside McConnell’s control, and also outside Breyer’s control. Such proposals reach beyond the current 6–3 supermajority on the court. In much of the public discourse, we treat those reforms like airless, unlikely academic exercises because implementing them would demand the hard work of organizing, messaging, and strategizing, which is precisely what we avoid doing when we pretend the problems of a revanchist court captured by minority interests can be solved by replacing Steve Breyer with another liberal.
The many Breyer critics who are now laboring to persuade him that the court is in fact political, and that his choice to remain on the court is also in fact political, and that everyone knows this except him, need to recall this: Breyer is not susceptible to political pressure because he does not see himself as behaving politically. As he said in a CBS interview in 2015 when Ruth Bader Ginsburg was being pressed to step aside, a justice’s “job is to treat administrations not as political entities, that you favor some politician or you disfavor another politician.” That is why he won’t step aside, and it is also why Breyer and Ginsburg opposed court expansion. But it doesn’t ultimately matter what Breyer thinks about court expansion. The court doesn’t decide that because, as is the case with many reform proposals, these are political and not judicial matters. And there are serious people positing serious solutions for that problem. They are the ones whose political ideas about a captured judiciary should be acted upon.
Replacing a liberal justice with another liberal justice on a 6–3 court is important, but it’s also small ball. If we do (or don’t) want justices to time their own retirements in exceedingly political ways, there is a way to fix that: implementing mandatory retirement ages or 18-year terms. That is all stuff Congress can fix if there is a public will to do so. The work is to build the public will to do so. Which means it may be time to let go of the weird learned helplessness around the courts and acknowledge that although it is easier to be angry at the justices than it is to fix the courts, it is much less effective to do it that way. In fact, it’s a concession to the wrongheaded premise that we all live at the sufferance of Mitch McConnell, Donald Trump, and the Federalist Society. That isn’t a concession anyone should be prepared to make. And that is the battle we should be engaging in.