The Pitfalls of Justice Breyer’s Rambling Consequentialism

Justice Stephen Breyer’s questions at Supreme Court oral arguments are notoriously long, diffuse, and rambling. They do tend to touch on an issue central to the case, but sometimes so indirectly that they provide no obvious opening for a response.

In The Authority of the Court and the Perils of Politics, Breyer has replicated his style at oral argument but this time at monograph length. His underlying topic is indeed central to the function of the Supreme Court and particularly so in our polarized time: Given that the Supreme Court has no effective power to enforce its judgments, what makes other political actors respect the decisions of the Court? As Breyer notes at the beginning, the question of why we obey the law goes back to ancient times. Cicero provided three possible answers for legal obedience: fear of punishment, hope of rewards, or the perception that the law is just.

But Breyer never concisely answers the question of why Americans demand that their leaders obey the decisions of the Supreme Court in particular cases, even as they and their leaders frequently disagree with those decisions. He consistently observes that Americans have over time acquired a habit of obedience. But that answer just raises the question of what inculcated that habit and what will perpetuate it.

A brief approximation of Breyer’s answer is the courts will inculcate habits of obedience if they are not regarded as “political.” This conclusion is not original, but it is in a sense originalist. In Federalist 78, Alexander Hamilton argued that the Supreme Court was the branch most fitted for constitutional review because it did not act through “will” (read politics) but judgment. That capacity for dispassionate judgment unaffected by the kind of politics that motivates elected officials provides the Court’s advantage over the other branches of government in maintaining the constitutional order. According to Breyer, Americans will keep obeying the Supreme Court so long as they by and large agree with Hamilton’s claims.

It might be hoped that Breyer would unpack what he means by politics—a rather vague and encompassing term. But he does not. Instead, he makes a series of claims, often based on personal observation, that suggest to him that the Court is not political, at least not in the sense that would undermine the demand for obedience. First, in most cases, the Court is unanimous or nearly so. Of course, the problem is that this consensus does not encompass most of the important cases the public cares about or even notices. Second, he observes that the judges are not partisan in the sense of favoring one administration or another because of the identity of the political parties. That is largely, although not always, true, but a court can be political without being partisan if its rules advance one vision or another of core political principles, like liberty or equality, over others.

And the elephant in the room is that many justices do just that. Breyer argues that they do not do so directly, but only through their choice of jurisprudence, and here again he is largely right. But he acknowledges that what seems like jurisprudence to lawyers often seems like politics to the ordinary layperson. The distinction may seem even fuzzier if, as is the case, the Democratic justices now tend to line up on one side of important cases and the Republican justices on the other, even assuming that they do so for good-faith jurisprudential reasons.

In my view, the realist case for the Supreme Court (and Breyer is broadly speaking as a legal realist) does not and never has rested on the premise that the Court is apolitical in the sense that judges do not have ideological or even partisan views that influence their decisions. Instead, it relies on a comparative judgment. They are not nearly as partisan as politicians, nor is their ideology as opportunistic. As a result, they are much more likely to sustain a stable framework of government. To be sure, that structure may change somewhat over time as one judge replaces another and a generation wedded to a different jurisprudence takes over. But even so, the Court will not transform its interpretation of the Constitution overnight as do the occupants of the White House or the Capitol, where the views about Article I and Article II and even parts of the Bill of Rights regularly change based on what happens in the first week of November.

The public gets this basic difference. But Breyer nevertheless worries that the habit of public respect and political obedience to the rulings of the Supreme Court may dissipate, because Americans’ trust in government is waning. But the question on the comparative view is not citizens’ general trust in undifferentiated government but their trust in the Court vis-à-vis the other branches of government. And according to opinion polls, the public still retains far greater trust in the Court.

Breyer’s book also offers ideas on how the Court can better preserve the habits of obedience to its rulings. He calls for clearer decisions and better deliberation, but few members of the public are directly affected by the clarity of opinions, and they have no sense of deliberations behind closed doors. He sings the virtue of compromise because a Court that offers a more united front will also be more likely to unite the public behind it. There is something to this view, but compromises struck on one day may force judges to seem inconsistent on the next, unless they are willing to shelve their principles permanently.

The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.

But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.

It is very likely that Court packing, if successful, would in time lead the public to regard the court as a more political—indeed partisan—institution not much different from other political partisan institutions.

In Federalist 78, Alexander Hamilton noted this difference in method while defending judicial review: “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” By precedents, Hamilton here likely means precedents on methods of textual interpretation. His discussion of judicial method does not resemble at all Breyer’s emphasis on values and consequences.

Unfortunately, Breyer’s lack of self-awareness characteristically undermines the plausibility of his work. In a previous book—Active Liberty—he called for a jurisprudence that focused on facilitating democracy. But he never even discussed the abortion rights decisions to which he adheres. Yet of course those decisions take democratic decision making away from the people of the states and arrogate it to judges—and they do so without any support in the text of the Constitution. In his new book, he calls for increasing the habit of trust in courts, but never considers how his own jurisprudence may decrease that trust.

The most valuable part of the book is that for which he has been most criticized by the left—his clear opposition to court packing. On the last page of his short book he states: “Structural alteration of the Court motivated by the perception of political influence among justices can only feed that same perception, further eroding the public’s trust.” Like much of the book, his position is somewhat obliquely stated and not fully reasoned, even if correct.

It is very likely that Court packing, if successful, would in time lead the public to regard the court as a more political—indeed partisan—institution not much different from other political partisan institutions. Assuming that under a period of Democratic unified government, as we have now, Congress and the President were to expand the Court to assure a majority appointed by Democrats, one can expect that Republicans will do the same when they next get unified control. And this would likely continue. One study has already modelled the likely result as having 23 justices within 50 years and 50 justices within 100 years. Beyond the instability in precedents created by constantly changing partisan-created majorities, this scenario would almost certainly change the self-conception of justices. They would no longer be working in an institution with a small number of decision makers who can discuss matters around a table. They would closely resemble a legislature with consistently partisan voting blocks. This change would become obvious to the public.

Thus, while Breyer’s book can be criticized as being devoid of novel insights and academic rigor, it is nevertheless valuable for its clear recognition that court packing motivated by partisan politics will destroy much of the judiciary’s comparative advantage in maintaining the constitutional order. It is important to hear this conclusion not only from legal formalists, but from the most consequential practicing legal pragmatist of this generation.