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.
Though the Court isn't responsible for its membership, it does own its decisions, and as we discussed some of its most unpopular ones --Kelo v. New London and Massachusetts v. EPA as well as the terrorism cases-- some in the listening audience emailed and took to Twitter to express dismay with the exchanges.
Not with the Justice, who was unfailingly charming and friendly, charismatic and quite obviously learned and experienced, and not with me as most of the audience is of course center-right to begin with.
But rather with the assumption that the Court has the right to decide these cases, and with the sense that, like the rest of the government, it is growing increasingly distant from and indifferent to the vast intrusions of the government into the lives of ordinary Americans.
One of Justice Breyer's central chapters is devoted to the doctrine of stare decisis, the judicial principle that past decisions ought to guide present ones. Justice Breyer dissented, for example, from Citizens United and his argument in that case and in his book is that the majority was abandoning the principle. (Chief Justice Roberts concurrence in Citizens United is must reading on this particular subject.)
As we discussed this I asked him about "cultural stare decisis," and the damage being done by courts across the land issuing marriage decisions that simply fly in the face of expressions of popular will again and again.
"We don’t know about the future," he replied. "And my way of going about the problem, which I see your problem, is try to explain to people what we do. There are, I mean, for one thing, we’re the border patrol. Now what do I mean by that? I mean that this document, the Constitution, does not tell people what kinds of cities, towns and federal government they want. What it tells people is they decide for themselves, within boundaries."
After a break Justice Breyer explained what he meant by that. Off air we had been discussing the radio program the justice had listened to as a youth, Sgt. Renfrew of the Mounties, and when we returned to the air he expanded on his analogy:
I was talking about that show, because I used to listen to it as a child. They’re out at the border. The border is cold and difficult. It’s hard to decide whether abortion is on one side, or is it on the other side. Prayer in schools – on one side or on the other side? There’s some very, very difficult cases. But what people cannot forget is that between those boundaries, there is vast, vast space where the democratic process is at work, and we have no business interfering. There are doctrines designed to keep us from interfering too much. One is judicial restraint, which certainly I try to follow, and I think my colleagues do, too. And judicial restraint means it has to be pretty wrong before you’re going to jump in. And actually, I mention that, because I’m pretty good on judicial restraint. And this was the dilemma. What Hamilton thought was if nobody, if there’s no organ of government that has the last word as to what the Constitution refers, well, you can hang that Constitution up in a museum. No one will pay attention. But if it’s the President who will have the last word, he might become a tyrant, deciding everything in his own favor. If it’s Congress that has the last word, how do we protect those who are unpopular? Because elected people, quite properly, are experts in popularity. They know what’s popular and not. But this document gives the least popular person the same rights as the most popular person. And that’s why you turned it over to judges. And it’s taken 200 years. I mean, you were alive. I was certainly alive during the time that Brown versus Board of Education declared that segregated, racial segregation is unconstitutional. It took quite a few years before that was made a reality, a legal reality in the South.
If this idea was once very persuasive, it is less so now as the Court's declarations are more and more often disputed, and none more than the abortion cases and of course cases involving religion. The rise of social media has allowed those critiques to stew in anonymity and thus grow in vehemence, on both sides of the political divide. If a large part of the public perceives that again and again the judges patrolling the borders of the Constitution are simply changing those borders to fit their ideas of where they ought to lay, and those ideas come from a very small part of the American intellectual universe, then the erosion of the Court's standing will be rapid and enduring.
Justice Breyer's willingness to engage in this sort of extended back-and-forth on a very public stage is a very good thing, and while I don't expect the justices to be doing much of this during the term that begins in October and wraps up in June, it would be very useful if more of his colleagues would ride this particular circuit and write more books for the the general public.
It isn't legal elites and the law school academy that the Supreme Court needs to hear from more often, or appear before on a more regular occasion. It is the people who are affected by their decisions that they ought to be speaking directly to, answering the objections as best they can while avoiding the controversies that will soon be upon them.