Justice Breyer: ‘I’ve Never Heard … a Voice Raised in Anger’ in Nearly 30 Years

Justice Breyer: ‘I’ve Never Heard … a Voice Raised in Anger’ in Nearly 30 Years

1.21.2025

By Susan DeSantis

During a “fireside chat” at the New York State Bar Association’s gala dinner last week, Thomas Susman suggested to Associate Justice Stephen Breyer that the U.S. Supreme Court is pursuing “a dangerous path by taking on a lot of cases that provoke strong political disagreements.”

Susman was quoting from “The Authority of the Court and the Peril of Politics,” a book in which Justice Breyer argued that minimizing such cases would increase the likelihood of public acceptance of the Court.

The retired Justice — who was at The Plaza Hotel in New York City to receive the Gold Medal, the New York State Bar Association’s highest honor — said politics is not the court’s primary motivation but he does hear that when speaking to audiences about his latest book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.”

“Look, isn’t this ridiculous writing this thing, traditional method, textualism. It’s really all politics’ and when you press a little, you’ll see the audience is thinking that even if they don’t say it and very often, they say it. I say, ‘no, that’s the wrong word, that’s the wrong word and 90% the wrong thing.’

“Of course, there’s politics when there’s a vacancy on the Supreme Court. Every political group in the country goes around and tries to get the president to appoint someone whom they think will, in fact, decide a lot of the cases the way they like politically. That’s true. I accept that. But the judge doesn’t think he’s doing that. The judge thinks he’s deciding it according to a jurisprudence and according to a lot of different things that are legal.”

But then, Justice Breyer went from speaking in generalities to directly addressing the Supreme Court.

“In that conference room, you stay away from the politics,” he said. “No. You really do. I’ve never heard in that conference room a voice raised in anger. It’s very professional. I’ve really never heard anyone in nearly 30 years say anything rude, not even jokingly, about somebody else.”

Susman, the ABA’s strategic adviser for governmental affairs and global programs who has known Justice Breyer since their days on Sen. Edward Kennedy’s staff, was not convinced.

“You know I love you dearly Stephen Breyer but that seems awfully naïve to say it’s jurisprudence and judicial philosophy when many judges’ and justices’ opinions align absolutely down the line with the politics of the president that appointed them,” Susman countered.

“I just described what goes on behind the curtain and I can’t do better than that. It’s not politics,” Justice Breyer repeated.

He pointed out that 40% of Supreme Court cases are decided unanimously and that the 5-4 decisions only account for 5% to 15% of the cases in any given year. “Somebody who is going to spend thirty years there deciding what the president thinks is good politics is out of his mind. Why doesn’t he go earn a living?”

Susman asked Justice Breyer if he had a magic wand and could reverse the results of one case, which would it be? Justice Breyer singled out Students for Fair Admissions v. President and Fellows of Harvard College, which ended affirmative action in college admissions. The case hinged on the U.S. Constitution’s guarantee of equal protection of the law.

“Equal protection of the law is different depending on whether you’re trying to bring people in to create a single American society made up of many different elements or whether you’re trying to keep people out,” Justice Breyer said.

Justice Breyer discussed how judges make such determinations in his latest book, and elaborated on it for the more than 500 lawyers and guests at The Plaza Hotel.

“You might want to look and see what purpose was this law passed for. Somebody had an idea of the purpose. Somebody wanted some mischief to cure. What? So read some of the legislative history, which is sometimes relevant and try and work out what is it that they’re trying to achieve. And what are the consequences? What are the consequences if we decide this way or that way? And what’s the history? What was going on in the Legislature at the time this law was passed? What are the values that you’re going to further one way or the other?

“Many of the more important of those values would be right here in this document,” he said, whipping out a copy of the U.S. Constitution. “Democracy, human rights, rule of law, equality, you know, working together, etc. … OK. So that’s traditional. That’s [Oliver Wendell] Holmes, that’s [Benjamin] Cardozo, that’s [Louis] Brandeis. That’s people who we were taught in law school to admire, and I did.”

The Justice related conversations he had with Supreme Court Associate Justice Antonin Scalia, a proponent of textualism, a judicial philosophy based on parsing out the words and punctuation in a law.

“The textualists,” Justice Breyer continued. “Nino and I were good friends. But, but we didn’t agree about a lot of things. He said, ‘Look at the text.’ He was afraid if you looked at these other things, the judge would substitute what he thought was good for what was the law.  And I said ‘I don’t think so. You can do that either way with either theory if you’re not going to be a decent judge.'”

Turning to the decision that overturned Roe v. Wade, Justice Breyer discussed what the textualists on the Court told him.

“I’d say, ‘Why? Why Roe v. Wade?’

‘Very wrong,’ they’d reply.

“I’d say, ‘Is every case very wrong that wasn’t decided according to the textualists’ method?’

“Ask the textualists that. They’ll say, ‘No, no, it’s not.’

“Why not? Because hardly any cases were decided on the textualists’ method. That would be the end of the law. Your client would come in and he’d say, ‘I want to do X.’ You’d say, ‘You can’t do that. The law is the other way,’ and he’d say, ‘Let’s get it overruled.’

“And pretty soon we’d all be out on the streets with our hats. You can’t do it. And they know that. So, they’ll say, ‘Well we’re only going to overturn cases that were egregiously wrong, really wrong.’

“I’d say, ‘OK, you think it’s really wrong. I don’t think it was so wrong.’ There we are.”

Justice Breyer predicted that the judges practicing textualism on the Supreme Court will realize its limitations and change course.

“What’s the benefit then of being on the Supreme Court?” he asks. “The benefit is that — just like the Court of Appeals, any court – you have cases that mean something to somebody. The personal benefit, the personal benefit is you have to give your best to each case, and you just do. And that’s internal. It is internal. Believe me, it is. And as you get older, you begin to think, yes, this is worthwhile, there is the advantage and so [the textualists will] see after a time that this textualism business doesn’t work too well, and we will see in some form or another a kind of retreat — I don’t know how they’ll put it — to what we’re more used to.”