Justice Breyer Roasted In Devastatingly Honest Book Review

Justices rarely get lit up like this.

(Photo by Chip Somodevilla/Getty Images)

In lieu of retiring — which would be the pragmatic thing to do — Justice Breyer is putting the finishing touches on a new book. Having fun celebrated his 27th anniversary on the Supreme Court earlier this month, the 83-year-old will soon release The Authority of the Court and the Peril of Politics (affiliate link), which endeavors to scold readers for suggesting that the Supreme Court has become a political organ and caution against any effort at reform that “could undermine both the Court and the constitutional system of checks and balances that depends on it.”

Because the Framers obviously intended 83-year-olds to cling to unelected power for over a quarter century.

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.

How can this guy possibly square this thesis with the reality we see at the Court these days? Well, according to Professor Mark Graber of the University of Maryland’s Carey School of Law, the justice just… doesn’t. In an open review posted on Balkinization, Professor Graber systematically breaks down Breyer’s manuscript and to say the professor finds it lacking would be an understatement:

Big things often come in small packages, but this is a case of what you see (if microscopically) is what you get. Consider the author’s query on p. 16, “Where then lies the power of the Supreme Court.” One would hardly know from what follows and certainly not from the lack of the footnotes that there is an extensive literature on this subject. The general conclusion most scholars have reached is that courts have power because crucial governing elites want courts to have power. Courts articulate the values of the governing regime, they bring those values into the hinterlands, and they resolve political hot potatoes when many governing officials would rather avoid responsibility for making controversial policies. I might cite such scholars as Ran Hirschl, Howard Gillman, Leslie Goldstein, Terri Peretti, and Tom Ginsburg for that proposition, or important variations on that theme…. Justice Breyer neither explains why this literature is wrong nor bothers to inform the reader that this literature exists.

The addiction legal academia has to footnoted citations stretches the bounds of good taste, but there’s a big difference between mucking up a coherent argument with multiple footnotes per sentence and deploying around 25 footnotes over the course of 100 pages, which is what Justice Breyer’s manuscript does. Especially when advancing an argument that’s so difficult to take seriously on its face.

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Justice Breyer shortly thereafter seemingly begins to explore whether “the Court had actually played a major role in ending segregation” (25). This, as political scientists and historians are taught in graduate school, is a major controversy with Gerald Rosenberg’s The Hollow Hope laying down a challenge that has never been fully answered to demonstrate powerful political effects from the judicial decision in Brown v. Board of Education (1954). Breyer as is his wont, engages with none of this literature. Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors]… won a majority victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” (26) Breyer concludes “I cannot prove this assertion. But I fervently believe it.” (26)

“I cannot prove this assertion but I fervently believe it,” encapsulates exactly why the public doesn’t have much faith in the Supreme Court as an apolitical actor. Spicing up a book on the neutrality of the Court with “despite any evidence to the contrary, my core beliefs tell me we’re doing good work” ranks as an all-time self-own.

This is just the cautious liberal side of Justice Alito’s naked partisanship. Even if you don’t buy the hollow hope argument and adopt the most saccharine view of crusading justice, it’s a disservice to Brown v. Board to reduce its defense to, “I dunno, but I fervently believe it was done right.” Like, there’s an argument to be had that Brown offers a symbolic break with the past that cannot be measured solely by the lived history of de facto segregation reintroducing itself. Just offer something to acknowledge the well-developed arguments here.

Maybe it’s good news for Justice Breyer that wingnuts are trying to ban critical race theory so he never has to read some of the more prominent critiques of the opinion.

If this is the standard of publication for Harvard University Press, please expect a manuscript from me demonstrating that the New York Giants will win the Super Bowl (needs a fast turnaround), that the Sicilian Dragon is playable in top chess tournaments, and that Mahler 2 is the most sublime symphony ever written, none of which I can prove, but all of which I fervently believe.

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Funny, but no one fervently believes the Giants will win the Super Bowl.

Still, the book does demonstrate a good deal of native talent. If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student. The University of Texas comes to mind, as does Princeton. Julie Novkov runs an underappreciated program in SUNY, Albany. Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer. Still, The Authority of the Court is likely to be converted into a successful dissertation and major university press book only if Breyer is willing to put in the time necessary to do the research. The solution is simple. Harvard should withdraw the book from publication, insist that Justice Breyer if he wishes to continue publishing university press books, as I believe a person of his intelligence and talent should, enter a leading graduate program, study with a distinguished political scientist and forego all other employment that distracts from this worthy endeavor.

Perhaps we’ve underestimated Breyer and he’s just sticking around because he doesn’t know what he’d do with retirement. It seems like this might be a fun new chapter!

A “Review” of Justice Breyer’s “Manuscript” [Balkinization]


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.