Justice Breyer is worried.
Associate Justice of the United States Supreme Court Stephen Breyer came though California this week, with stops at Richard Nixon Library and Birthplace and in my radio studio.
In both places he was talking about his book Making Our Democracy Work: A Judge's View, and in his extended conversation with me we returned again and again to the question of whether we are in an era marked by a crisis in judicial legitimacy.
We covered a lot of ground including the Guantanomo Bay cases, Bush v. Gore and the subject of political reapportionment. (To help with the next round of terror-related jurisprudence, I gave the justice a copy of Lawrence Wright's The Looming Tower as he left, and I hope every member of the Court reads it before the subject returns to them again.)
Readers can chose for themselves which parts, if any, they found most interesting of our spirited exchanges, but the recurring theme, like that of Mr. Justice Breyer's book, is why do Americans respect and obey the decisions of the Court?
The story of that hard-earned legitimacy is laid out in Justice Breyer's book, but the growing threat to it made up the central ground of our conversation.
Justices don't get out much, and when they do it is typically into highly specialized and usually, if not always, very deferential settings of law schools and judicial conferences.
This is necessary and proper as the Court must work to appear above politics, but the isolation can lead to insulation.
A second problem is that court is drawn from hyper-elites and interacts with pretty much only with the overclass. I asked the justice how a Court made up of six Harvard Law School and Three Yale Law School graduates could possibly retain the trust of the people it governs at least in part.
'[D]o you worry about the Court’s ability to attract widespread consensus of the sort you defend," I asked, "if it is perceived as, in one instance, much older than the population, and the other instance, much more privileged?"
Mr. Justice Breyer laid out a lengthy response, and of course he is not responsible for the nominations of five presidents coming from the nation's two most elite law schools.