Courts

The Gaslighting Of Stephen Breyer

Recent speeches by Barrett and Thomas were calculated to speak to an audience of one.

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(Photo by Chip Somodevilla/Getty Images)

As Justice Breyer traipses across the media trying to sell his actually pretty terrible book, the slice of America worried about pedestrian concerns like “voting rights” and “women’s autonomy” seems more than a little irate. That an 83-year-old man closing in on 30 years of service on the Supreme Court would refuse to retire to allow his successor to be chosen by a generally centrist president backed by a slim and certainly fleeting Senate majority would push the definition of hubris to new heights had we not just watched an 87-year-old cancer survivor do the exact same thing with tragic results.

Or maybe Breyer does reach a new benchmark of hubris because, unlike Justice Ginsburg, he has the benefit of having watched what happened to her and he still elects to do nothing.

How could someone who drapes himself in accolades as a “pragmatist” get so disconnected from reality? It’s a question a lot of folks have asked, but the last couple of weeks may have uncovered an answer. It’s not that he “lives in a bubble,” so much as that bubble is aggressively gaslighting him.

It’s not an accident that as soon as Breyer kicked off his book tour, Justice Amy Coney Barrett publicly declared that the Court is not “a bunch of partisan hacks.” That she clumsily did so while standing next to Mitch McConnell instead of waiting for a less comical opportunity is a testament to the fact that no one else is going to give her a speaking engagement. Not wanting to be left out, Justice Thomas told Notre Dame students that he’s shocked and saddened that anyone thinks the Supreme Court might be partisan. He told the audience that, for the justices, “you do your job and you go cry alone.” Astoundingly, not a single person appears to have asked the obvious follow-up: “name one instance in your entire judicial career where you’ve made a decision that made you cry.”

Why are these justices pounding the pavement with this message? Because that’s how you keep scales from leaving a fellow justice’s eyes. Make sure that every day, when he shows up at work with the only other eight people who have his job, he’s seeing that they spent their weekend talking about how brilliant his conclusions are. Breyer’s most cynical coworkers are going to great pains to publicly parrot his rhetoric and he’s just lapping it up.

Dahlia Lithwick recently wrote that harassing Breyer over retirement was counterproductive because it triggers justices to “perform their own neutrality.” It’s a fair point, though unfortunately, that’s a ship that set sail at full steam long before anyone asked Breyer to pick out cabana wear. If overturning Roe via shadow docket hasn’t put the justices on institutional credibility alert, telling a justice to consider retirement isn’t going to do it. But she’s right that retirement talk has triggered a performance, it’s just that the performers here are the right-wing justices desperate to keep Breyer ensconced in the happy fiction that his arrogance is a form of public service.

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Thomas fears that people realizing that judicial philosophies are tied to politics will “jeopardize any faith in the legal institutions.” Except… this is true, giving Thomas’s speech some real “emperor has no clothes” energy. Instead of buckling to their nonsense, go right ahead and keep calling on Breyer to retire! Let him and the other justices scramble to the battlestations along the wall of rhetorical BS around their hallowed bastion. Make them keep repeating this tripe until no one can swallow it anymore.

There’s just no reason to have faith in the Court as it currently operates and just pretending that’s not true is a terrifyingly ineffective response to that fact. But until that message gets loud enough to get inside the Court itself, they’ll keep the mutual appreciation society going strong, gently easing each other’s anxiety that maybe, just maybe, they aren’t each individually more important than the country.

Because the thing about that folktale is no one accomplished anything by all agreeing to let the emperor keep going on Colbert and acting like he had clothes.

Earlier: Justice Breyer Roasted In Devastatingly Honest Book Review
We’re Not ‘Partisan Hacks,’ Says Partisan Hack At Partisan Event
Justice Thomas Is Shocked And Saddened At Suggestion SCOTUS Is A Bunch Of Ideological Hacks

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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.

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