Justice Breyer’s Regrets

Justice Stephen Breyer, one of the court’s more mild-mannered members, is a liberal fond of compromise and balancing tests, a jurist of the old school. He was appointed by President Clinton, and his jurisprudence displayed something of the Arkansan’s penchant for triangulation. Yet these days the Justice seems full of regrets. In an interview with Chris Wallace that aired Sunday evening on CNN, the justice — who has returned to Harvard Law School to teach his beloved administrative law — has bracing words for the black robed worthies who used to be his colleagues. Justice Breyer has a warning for the court, that if the justices “start writing too rigidly you will see the world will come around and bite you in the back,” because “life is complex, life changes.” In respect of the effort to maintain “certain key moral political values: democracy, human rights, equality, rule of law,” Justice Breyer rejects the notion of “writing 16 computer programs.”The majority in Dobbs did no such fretting, writing that “Roe was egregiously wrong from the start. Its reasoning was exceptionally weak, and the decision has had damaging consequences.” They decided that it is “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In response to a question from Mr. Wallace, Justice Breyer exclaims “And you say did I like this Dobbs decision? Of course I didn’t. Of course I didn’t. Was I happy about it? Not for an instant. Did I do everything I could to persuade people? Of course, of course. But there we are, and now we go on. We try to work together.” That gesture toward comity is belied in Dobbs by the anger of the dissenters, a cohort of which Justice Breyer was the senior member. They wrote that the “majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision.” The normally mild-mannered Justice Breyer’s comments come just as the court is set to begin, for the first time in nearly three decades, a term without him. His spot is filled by Justice Ketanji Brown Jackson, who is likely to serve as a similarly reliable liberal vote. Justice Breyer’s comments come during a chatty season for the usually taciturn jurists of the high court. Chief Justice Roberts struck back at the court’s critics, arguing “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.” Justice Elena Kagan has taken a different approach, arguing that “When courts become extensions of the political process, when people see them as extensions of the political process” that is when “there’s a problem — and that’s when there ought to be a problem.”

Justice Breyer’s Regrets

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