The Authority of the Court and the Peril of Politics

by Stephen Breyer

Overview

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.

Product Details

ISBN-13:	9780674269361
Publisher:	Harvard University Press
Publication date:	09/14/2021
Pages:	128
Sales rank:	61,311
Product dimensions:	6.50(w) x 4.30(h) x 0.60(d)

About the Author

Stephen Breyer is Associate Justice of the Supreme Court of the United States.

Editorial Reviews

A concise plea for greater understanding of the judiciary.

FTCWatch - Claude Marx

Breyer…has thought deeply about judicial power, the rule of law, and the role of the judiciary in the American polity…His voice is a powerful one, and the brevity of this book, together with its readability, should ensure its lasting influence…An important document on American civics.

Wall Street Journal - Bryan A. Garner

Seeks to provide a historical backdrop to current public discussions about reforming the court…[Breyer] warns that these politically polarized times threaten public confidence in the high court.

Washington Post - Joan Biskupic

2021-06-24
Why the Supreme Court deserves the public’s trust.

Based on his 2021 lecture at Harvard Law School, Supreme Court Justice Breyer offers a selected history of court cases, a defense of judicial impartiality, and recommendations for promoting the public’s respect for and acceptance of the role of the judiciary in the future. The author regrets that many Americans see the justices as “unelected political officials or ‘junior varsity’ politicians themselves, rather than jurists,” asserting that “nearly all” justices apply “the basic same interpretive tools” to decide a case: “They will consider the statute’s text, its history, relevant legal tradition, precedents, the statute’s purposes (or the values that underlie it), and the relevant consequences.” Although Breyer maintains that all try to avoid the influence of ideology or political philosophy, he acknowledges that suggesting “a total and clean divorce between the Court and politics is not quite right either,” since a justice’s background, education, and experiences surely affect their views, especially when considering the consequences of a decision. The judicial process, Breyer explains, begins as a conference held once or twice each week where substantive discussion leads to preliminary conclusions. Sometimes, in order to find a majority, the court will take a minimalist perspective, allowing those who differ “on the broader legal questions to come together in answering narrower ones.” Noting that, in 2016, only 1 in 4 Americans could name the three branches of federal government, Breyer suggests a revival of civics education in schools so that students can learn how government works and what the rule of law is. He believes that confidence in government will result from citizens’ participation in public life: by voting, taking part in local governance such as school boards, and resolving their differences through argument, debate, cooperation, and compromise, all of which are “the embodiment of the democratic ideal.”

A cogent overview of the court’s crucial role, the application of which is sure to be discussed among scholars.

Kirkus Reviews