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Friday, August 27, 2021

Silence is Golden, Justice Breyer

There are some things I admire about the fact that Justice Breyer has not retired. It's not a a long list, since I think he should have retired already. I can find little good reason for a Supreme Court justice to serve more than 20 or 25 years on the Court, and if that justice is already past the age of 70 or so by that time, I can find almost none at all and find it presumptively irresponsible. (To be fair, I find it even more irresponsible that someone would serve in elected office at that age or run for a demanding office like the presidency past the age of 60 or 65. That most certainly includes the current and prior occupants of the office and any number of members of Congress. It should be an embarrassment to both men that Trump and Biden asked for the burden of serving as president at the ages of 74 and 77.) But I did admire the fact that Breyer at least affected to be uninterested in the political groups and social-media shouters who were telling him to retire (and, inevitably, in many cases turning making a buck by doing so). And I appreciated that, with the exception of a platitudinous speech last year, he generally didn't comment on it. One may contrast this with Justice Ginsburg, who seemed all too ready to embrace her celebrity and talk about her retirement or non-retirement, among other issues, and whose celebrity was a financial boon for some of her extended family members.

That's why I was particularly disappointed that Justice Breyer chose to speak with Adam Liptak on the subject. Kudos to Liptak for the "get," certainly. I have no idea how soon in the interview Breyer's retirement came up, but it's no surprise that it did or that Liptak leads with it, and would or should have been no surprise to Breyer. Although he "visited the Washington bureau of The New York Times to discuss his new book, 'The Authority of the Court and the Peril of Politics,'” surely the justice knew that the book itself would be near the bottom of the list why a Times reporter, or anyone else, would want to talk to him. He could have tested this, of course, by saying words that seem all too uncommon these days and then sticking to them: "No comment." They're the only two words a justice generally needs or should use in talking about the Court, let alone his or her own role and tenure on it.  

The best way to engage with tedious spectacles is not to engage with them; and a genuine attitude or put-on image of rising above it all is not terribly effective when one chooses to...respond to it all. By choosing this path instead, Justice Breyer effectively puts himself on a level with, and earns, every standard-issue Chemerinsky op-ed, billboard, tweet, and fundraiser-cum-message-campaign urging him to retire. It is particularly horrifying that he is quoted as saying, "I don't think I'm going to stay there until I die--I hope not." Short of tragedy or a Looney Tunesian falling-anvil incident, there is no reason any Supreme Court justice should die at the job. And it is a dilemma he could solve with a one-sentence letter any time he wishes. I say again: the most, and maybe the only, admirable model I can think of in recent decades for Supreme Court justices showing both proper care for the institution and a proper perspective about his or her job is Justice David Souter, who served for under two decades and walked out of the building under his own steam. 

Perhaps we should think of this interview as in part an example of the pernicious effects of Supreme Court justices publishing books. Although the size of the contracts for these books hss skyrocketed--not much of an issue in this case, I should think, since Breyer's book is being published by a university press--we should not think of this as a modern phenomenon. The last century was full of unimportant books written by Supreme Court justices. Even the rise in memoirs by justices is not unique. William Douglas cluttered a good-sized shelf with both categories of book. But that doesn't mean they were a good idea then. (Surely money was a relevant motivating factor in those days too.) And they're even more unfortunate today. We would lose a couple of interesting books if Supreme Court justices declined to publish books while sitting on the court; Rehnquist's history of impeachment comes to mind. But not many, probably not this one, and we would gain much more than we lose. Among other things, we would lose the temptation to sell and to speak that resulted in Breyer's interview with Liptak. As a general, almost unbreakable rule, Supreme Court justices, like mimes and celebrities, should perform their roles and otherwise remain silent.    

Posted by Paul Horwitz on August 27, 2021 at 10:23 AM in Paul Horwitz | Permalink


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