On a recent episode of Amicus, Dahlia Lithwick spoke with Judge Nancy Gertner about Justice Stephen Breyer’s announcement that he will retire from the Supreme Court at the end of the term and the political maelstrom already brewing around the confirmation fight over whoever will be named his successor. Gertner is a former federal judge and a member of the White House’s Supreme Court Reform Commission, and she’s known Breyer for decades. A portion of their conversation, which has been condensed and edited for clarity, has been transcribed below.
Dahlia Lithwick: I want to start with Justice Breyer. I noted when I first heard the news that he was stepping down that here is this last judge who just refused to be partisan, and he wouldn’t be pushed out by the left, because it would politicize the court, and he wouldn’t accede that what the right wing of the court was doing was political, because right to the end he insisted that the court is apolitical, that justices are not junior varsity politicians in robe. And he lived on this knife edge of always wanting to protect the court as an institution but also wanting to protect the liberal values, his own legacy of what he had put into place. And at the very last second, maybe I’m being unfair, but this announcement in January—he didn’t wait till the spring—to give the Biden administration lots of runway to replace him feels like it’s ultimately a really political act.
Nancy Gertner: I don’t think he had a choice. He is all that you described. He is an institutionalist. He wanted to believe that the court, as an institution, was apolitical. His book last year was timed perfectly so that he could make that point over and over again. But I don’t think he had a choice. I think that the Ginsburg model of someone who was making contributions to the court up until the very end but who ultimately dies in the Trump administration and winds up being replaced by someone who is her polar opposite—he’s an institutionalist on the one hand, but he was deeply political on another. He was an aide to Sen. Kennedy. His vision was moderation on the one hand; on the other hand, let’s split the difference and let’s have a rational system, which was very political because it was trying to walk a thin line between all of the political fires that were going on.
He had no choice but to retire at this point. He is 83. The only thing I wonder about is whether there was a moment when he saw the new conservative majority grabbing cases, intentionally undoing a 60-year legacy of not radical stuff, and he saw them not just dealing with this stuff as it arrived. They were aggressively reaching out to undo cases from the past 40 years. I wonder what he felt when he saw that happen, and whether that was the trigger, but I think it was bound to happen no matter what anybody said. I knew it was going to happen; you knew that it was going to happen. It was only a question of when.
It’s interesting, because I’m thinking about some of his questioning, even in the Dobbs argument, the most recent 15-week Mississippi abortion ban, and some of his questions in that oral argument were about the legitimacy of the court. It’s clear that the thing that was dispiriting to him wasn’t just that the court is drifting ever rightward. It was between the way the shadow docket is operating; the ways in which the court was reaching out to take questions that were not properly before it, and then willy-nilly saying, eh, precedent’s maybe overrated; the way we were hearing in Dobbs that in a sense he was fighting this two-front war where he really does feel that the nine justices are the sole guardians of the reputation, the integrity, the independence of the court.
And that almost pained him more than the rightward drift—that the court was, for lack of a better word, crapping all over centuries in his mind. He always goes back to the Trail of Tears and the court didn’t have legitimacy and let Justice Marshall enforce it. He really sees this as an existential moment for public regard for the court. And that seems to be breaking his heart more than the end of Roe and the expansion of gun rights.
Well, I think that’s right. One of the things that I struggle with—I’m writing a memoir about judging, which is very difficult—is that you temper your politics the minute you walk on the bench, and if you are an appellate court judge, you have to deal with the other two guys on the panel.
This is a court that doesn’t have to deal with anybody. That’s the horrifying point. They’ve got a clear road to do whatever the hell they want to do with precedent. I think that’s what he saw. They don’t have to struggle with Justices Sotomayor, Kagan, and him. And that’s a ultimate legitimacy issue. They can reject precedent. They don’t have to struggle with what the usual standards are for cert. They don’t have to struggle with anything.
And he saw that not just in the destroying of a liberal legacy. Because although I believe that he has liberal instincts, I wonder sometimes if the institution mattered more to him than the outcomes. And here were people who were undoing the institution. The affirmative action case that they just took: There is no reason to take it except to undo affirmative action. The law was settled. There was no division among the circuits that only the Supreme Court could resolve. And therefore the only purpose of taking it is to undo decades of settled precedent. Dobbs: There was no reason to take that except to undo Roe v. Wade.
There are standards for what the Supreme Court may take, and this court is ignoring those standards. And they have four reliable votes to do whatever the hell they want to do, which is not judging in any way, shape, or form. So I wonder what it must feel like in those conferences when he sees that it really does not matter what Kagan, Sotomayor, and he say to this group at all.
Look, I’ve been covering the court for 20 years and I remember when he and Justice Scalia would go around on their multicity concert tour, and I remember likening them to Justice Grover and Justice Oscar, and they’d wave their Muppet-y hands in the air, and Justice Breyer would talk about workability and pragmatism, and Justice Scalia would grouse about originalism and strict constructionism, but they really loved each other. And they really started from a premise of deep respect and regard for the other.
And they had to deal with each other.
There were stakes.
They had to account for the other’s view. And these guys don’t.
He has a skill set of working the levers, the thing that we associate with maybe Justice Brennan—that he could get O’Connor, that he could get Rehnquist. I interviewed him just over a year ago and he was so careful to say, “Credit is a weapon.” You don’t want to get credit; you just want to get results. And he learned that even if you hate each other, you find a point of mutual interest and you do the deal.
And so you subordinate your big ego, and you get the deal done. And what you’re saying is all of those skills just matter not at all. They clatter to the ground now, because you can do the deal, you can concede. We’ve seen in the last couple of years, he and Justice Kagan make concessions and get nothing in return. And he had this one superpower, which is deep mutual respect, enduring friendships, and relationships. I think he thought right to the end that as long as we’re nice to each other around the lunch table, maybe I can get some outcomes, but it was very clear that stopped working for him.
It’s being nice, but it was also the legitimacy of the court depended on appealing to reasoned decision-making. What does that mean? Well, there are specific standards for cert. Are there divisions in the country as between courts of appeals? Is it a matter of public importance? There were standards for cert, and once Amy Coney Barrett joined the court, those don’t matter. The driving force is not does this meet the standards for cert? The driving force is do we think this was the right decision? And so, yes, he’s incredibly civil. He really is a warm and wonderful human being. But the institutional issue, the principles that drive the court, that all of them are supposed to adhere to, really don’t matter with this group.
I thought I was as cynical as the day is long, but even I have been surprised at how easily they have cast off, not just the usual precedents, but the notion that they’re going to be on the court for decades. This conservative majority is really entrenched. They can take their time and be respectful of the institutional issues, but they’re not taking their time. They are ripping all of these precedents completely asunder.
And that’s got to have been shocking to him. Before Amy Coney Barrett got on the court, I was tracking all of the decisions that talked about precedent—all these wonderful Kagan descents. And you thought that it was only about abortion, but it wasn’t only about abortion; it was about everything. And that’s got to have been incredibly heartrending to him and really troubling.
Let’s talk for a minute about the politics of this confirmation fight, because it seems to me a couple of things, none of which bode well. I would think you’ve got a 6–3 supermajority, as you say, probably for 30 years. It’s hard to imagine absent court repair, court reform, and court expansion that this isn’t a supermajority for a very long time. In which case you take the win, I would think. You just say, “Hey, Biden is going to put someone on the court, and they’re going to be smart and qualified. OK. We still have a 6–3 court.” As you said, we don’t even have to negotiate with them, because there’s only three of them. They’re going to lose.
And yet in the short amount of time since we’ve heard that Breyer’s stepping down, we’re already getting full-on racist attacks on the not-yet-named Black woman that Biden has pledged to put on the bench. Let’s talk about the ways in which this needs to turn into critical race theory, affirmative action, “Black women are inherently not qualified,” “This is not representative of how tiny the number of Black women in the judiciary are.”
It feels to me as though given the choice between going high and saying, of course, all of these women on the short lists are eminently qualified, and redoing this tawdry battle about how “They’re just not that smart,” “They’re just not that impressive,” “Joe Biden is a chump for making this promise”—even though Ronald Reagan made the near identical promise when he nominated Sandra Day O’Connor.
Why make the choice to use this to just fuel the fire? It feels to me as though the inevitable result, if you start by tweeting that they’re not smart, is that you get what you have now directed at Sonia Sotomayor, which is if you start with the predicate that this woman who graduated summa cum laude from Princeton, Phi Beta Kappa, one of the smartest by any measure candidates for the court, and 20 years later, they’re still calling her stupid and she lives with that. Is this just seeding the ground for decades of calling whoever this woman of color is stupid for the rest of her career?
I think that’s right. That is a drumbeat that we’ve been living with. Frankly it was women generally, and now it’s women of color. It’s a drumbeat that we have been living with for the longest time. It’s very interesting that when Amy Coney Barrett was appointed, there was not a drumbeat that you’re looking not just for any qualified women, you were looking for a qualified woman with Federalist Society pedigree. And that was a very narrow group. No one was to talking about that.
The women who have been named are superb, absolutely superb. And it’s really late in the day to say that the effort to find a qualified Black woman is an effort to find a less qualified judge, because the pool is long and deep now—not as wide as white males who look like all the others, but that’s because there’s still very few women judges in general proportionately, and it’s still fewer African American women, but the pool is deep. And the women who have been named are certainly qualified.