Monday, September 27, 2021

What is Justice Breyer Doing?

 by Michael C. Dorf

Justice Breyer has been hitting the talk-show circuit lately, making two notable claims: (1) that he doesn't intend to die while on the Court; and (2) that the Supreme Court isn't political. Both claims emphasize what he wrote in his new book, The Authority of the Court and the Peril of Politics, which he has been assiduously promoting. It's not clear which claim is more dangerous.

The obvious peril from claim (1) is that Justice Breyer--like every other human being on Earth--has limited control over the timing of his passing. In an interview with the NY Times last month, Breyer at least had sufficient sense to recognize that his intention not to die while serving on the Court was ultimately a mere "hope." Speaking of which, one hopes that Justice Breyer has decided but not announced that he will retire no later than the end of the coming Term, which will ensure that a Democrat appoints his successor but only if none of the Democratic senators in states with Republican governors dies in the interim. Still, Justice Breyer's discussion of the multi-factor balancing test he will use to time his retirement raises the distinct possibility that he has no short- or medium-term plan to retire, raising the possibility that he could leave the Court (one way or another) at a point when either Republicans in the Senate might block a Democratic president's nominee or a Republican president would name his successor.

So much for claim (1). Claim (2)--that the Court isn't a political body--echos recent statements by Justices Thomas and Barrett, as well as the sort of pablum that nominees to the Court spoon to the Senate and the public at their confirmation hearings. Most famously, Chief Justice Roberts, as a nominee, described the job of judging as simply calling balls and strikes. More prosaically, Justice Barrett recently honored Mitch McConnell by declaring that she and her colleagues cleared the lowest of all possible bars: that they aren't "partisan hacks." Justice Breyer's repetition of a version of this talking point risks confusing the public because it trades on a slippage among different meanings of "political."

(A) One sense of "political" is "partisan." Justice Barrett is mostly right that the Justices aren't exactly partisan, at least most of the time. Partisans support their side regardless of the underlying policy issues. Thus, in the Obama administration and now during the Biden administration, Republican members of both houses of Congress have been voting against measures they actually favor on policy grounds to gain a political advantage in the next election.

Justice Barrett is right that one doesn't see much of that sort of thing on the Supreme Court. But she's probably wrong that one sees none of it. Bush v. Gore--in which the conservatives overrode an interest in federalism to hand a presidential election to the Republican candidate and the liberals were all in on federalism for a Democrat--is Exhibit A of Justices seemingly voting their partisan druthers over their usual ideological ones.

Moreover, partisanship and policy are increasingly difficult to disentangle. For example, the Republican appointees have, in recent years, eagerly approved measures limiting the scope of voting rights and crediting claims of voter fraud. It's possible that these and other attitudes reflect some ideological commitments that merely coincidentally line up perfectly with the institutional interests of the Republican Party, but that seems like quite a coincidence. More broadly, as the parties have become increasingly polarized and ideologically coherent (relative to one another), the line between partisanship and politics has become less meaningful.

(B) That is not to say that all of the Justices vote in a partisan or even a political way all of the time. But the actual voting pattern we see is also a far cry from what Justices Barrett, Thomas, and Breyer would have us believe. Despite cross-ideological votes in low-stakes cases and occasional surprises in high-stakes cases, ideology is a very reliable predictor of each Justice's overall voting pattern.

What's the explanation for that pattern? Justices Barrett, Thomas, and Breyer acknowledge that Justices have judicial ideologies, but, they say, that's not the same thing as a political ideology. If the Justices divide along what look like party lines, that's just because Democrats tend to be living Constitutionalists and purposivists in statutory interpretation, whereas Republicans tend to be originalists and textualists.

That claim is mostly false. Yes, there are some cases in which Justices can be seen voting their methodological--or at least their legal--druthers rather than on purely partisan or policy grounds. For example, in Gonzales v. Raich, three conservatives voted for a respondent claiming that the application of federal criminal law to state-legal medical marijuana was unconstitutional. And all of the Court's liberals allowed the prosecution. Presumably legal/constitutional views about federal power, not policy views about marijuana, explain those votes. (The two Justices who could be said to have voted their policy views were Scalia and Kennedy, although it is possible to defend those votes as not simply result-driven.)

But note that Raich was not a case of any Justices reaching distasteful policy results on the grounds of their methodological commitments. It's possible, perhaps, to characterize Justice Gorsuch's highly textualist opinion in Bostock v. Clayton County that way, I acknowledge, although even then, I think an equally plausible explanation is that he and Chief Justice Roberts (the other conservative in the majority) aren't homophobic or transphobic. Put differently, nothing about Bostock contradicts the supposition that all the Justices (with the possible exception of Kavanaugh) voted their policy preferences, with Justice Gorsuch then writing the opinion in a textualist style.

In any event, I'm willing to stipulate that occasionally Justices vote their methodological druthers over their ideological or partisan druthers. However, the overall voting pattern we see--in which ideology is the best predictor of a Justice's vote--and the malleability of the various methodologies, very strongly suggest that the Justices are mostly voting their values and ideological druthers, not their methodological druthers. Even if they're not partisan hacks, they're hardly apolitical.

Why does it matter that the Justices are misleading the public? Because when conservative Justices aren't defending the Court as an institution, they and their supporters in the political realm accuse liberal judges and Justices of imposing their values on the people, while claiming that they themselves are just following the law. When liberal Justices play along, they contribute to a public narrative that conservatives have exploited for decades.

The public's default jurisprudential orientation is naive formalism. Nonetheless, they observe the political disputes between the Justices. Thus, they assume that at least some Justices are substituting political judgment for law. People hear conservative politicians relentlessly accuse the liberals of doing just that. A principled response, which liberals sometimes offer, is to say that formalism is grossly underdetermine on a court of last resort with control over its own docket, so that law and politics inevitably mix. We then point to the numerous examples of conservatives voting based on their values to undermine the contention that the liberals play politics while the conservatives simply follow the law. However, when Justice Breyer or some other liberal-leaning Justices say that judging is any kind of apolitical, they reinforce the public's formalism, which will ultimately be turned against liberal judging.

Accordingly, I am highly dubious of the message Justice Breyer is selling on his book tour. The question that titles this post then arises: What is he doing?

The most likely answer is that Justice Breyer is promoting his book to sell copies to make money or to garner attention for some kind of ego satisfaction. This is a depressing but all too real possibility, especially given that The Authority of the Court and the Peril of Politics is hardly Cardozo's The Nature of the Judicial Promise or a serious book of the sort produced by Breyer's late colleague William Rehnquist (All the Laws But One) or by the late federal appeals court Judge Robert Katzmann (Judging Statutes), or even prior books by Breyer himself (e.g., Active Liberty). The fact that one of the most incisive reviews of Breyer's new book compares it in any way to The Very Hungry Caterpillar is . . . well . . . not a good sign.

Yet even if Justice Breyer is out on the talk shows to make a buck or get a rush, that doesn't explain why he wrote the book the way he did. He could have written a memoir (like Five Chiefs by Justice Stevens or My Beloved World by Justice Sotomayor). Or he could have repackaged his own views about judging, perhaps updated with some more recent cases since Active Liberty. Why the just-balls-and-strikes routine?

I'll offer two competing hypotheses in conclusion. Hypothesis 1 is that Justice Breyer really believes what he's saying. From an external perspective, this may seem hard to accept, but in listening to judges and Justices over the years, I have the sense that they don't spend much time thinking about how things look from an external perspective. They experience themselves deciding cases with an open mind based on the law. If from the outside their work looks political, they think, well that's simply a mistaken appearance. In this view, the role for small-p politics in judging mostly arises through the judges' and Justices' unconscious resort to their values.

Hypothesis 2 is that Justice Breyer is in fact a sophisticated legal realist who understands that values matter, but that he is hoping to earn some credibility with his persuadable conservative colleagues so that they will stand with him and for the rule of law the next time Donald Trump or some other would-be dictator tries to use the law to pull off a coup. In this view, Breyer knows that he can't win over his conservative colleagues on major substantive issues like abortion, the death penalty, affirmative action, guns, and just about everything else that we associate with the modern Supreme Court. But he's hoping that he will be able to appeal to them down the line to save the American Republic.

Hypothesis 2 makes Breyer's motives noble, but it's problematic in two respects. First, it suggests that Breyer expects to be on the Court when the rubber hits the road in either late 2022 or 2024, meaning that he may wait too long to retire.

Second, although no Justices went for Trump's opera buffa effort to steal the 2020 election, that's chiefly because the election was so far outside of what Prof Rick Hasen has called the "margin of litigation" that they could not plausibly rule for Trump after the fact. As I and numerous other commentators have observed, however, there's enough wiggle room in the law for a future stolen election--especially one in which Trump-loyal apparatchiks manipulate state processes--that Breyer's conservative colleagues will be able to vote Republican while saying to Breyer (and at a conscious level perhaps even thinking) that they're just calling balls and strikes.