Justice Breyer, the supreme explainer

A Supreme Court justice tries to educate a jaundiced public about how it all works

October 12, 2011|Dan Rodricks

Supreme Court Justice Stephen Breyer finds it remarkable that the walls of this republic did not come tumbling down when the court put a quick stop to the recount of the 2000 presidential election vote in Florida. The vote was 5-4, split along the court's ideological lines. It gave George W. Bush a critical victory in the state where his brother was governor; the rest is sad history.

After the court's decision, the losing candidate, Al Gore, told his supporters to g'wan home now, and to refrain from attacking the decision.

"Despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the Court's intervention, the public, Democrats as well as Republicans, followed the decision," Justice Breyer writes in his book, "Making Our Democracy Work." "They did so peacefully, with no need for troops as in Little Rock, without rocks hurled in the street, without violent, massive protest. The leader of the Senate, Harry Reid, a Democrat, later said that the public's willingness to follow the law as enunciated by the Court constitutes a little-remarked, but most remarkable, feature of the case. I agree."

Willingness? We didn't have any choice. The way this republic was designed, with the Supreme Court guarding the boundaries of the Constitution while the president and Congress go about governing and making law, Justice Breyer and his colleagues get the last word. Did Americans respect the Supreme Court as much after Bush v. Gore as they did the week before? No. Opinion polls indicated a significant drop in positive attitudes toward the court after its decision in December 2000. Some regarded the Rehnquist court's intervention as corrupt, riddled with partisan politics, a violation of the judicial oath by the majority justices.

Justice Breyer, the pragmatic, liberal-leaning judge appointed by Bill Clinton 17 years ago, dissented from the majority in Bush v. Gore, and with his book and his willingness to speak publicly — he's on stage at the Lyric Thursday night, and he was a guest for an hour on my radio show Monday — he appears to be on a campaign to restore confidence in the court by explaining how it works. It's an admirable and provocative thing to do in an age of profound cynicism about our capitalist democracy.

"Public trust does not follow automatically from the existence of a written constitution," Justice Breyer says. "It must be built, and once built, it must be maintained."

That's a big task. If Congress reflects the nation, then the nation is super-polarized. Maybe it was always thus, but the condition seems far more acute these days. The Supreme Court is not immune. According to Gallup, the two lowest approval ratings ever recorded for the high court have occurred since Bush v. Gore. In the most recent polling results, released just last week, Gallup found approval of the Supremes at only 46 percent, with 40 percent of respondents saying they disapproved.

"The drop in Supreme Court approval in the latest poll could be a result of the broader decline in Americans' trust in government in general, rather than a response to anything the court has done recently," Gallup said in analyzing the poll.


When I asked listeners to my radio show to email me questions for Justice Breyer before Monday's interview, the most common submissions had Citizens United v. Federal Elections Commission in their subject lines. That was the high court's decision — also 5-4 — that corporations are people, too; and, as such, they have every right to throw gobs of money in support of (or opposition to) political candidates. This was a reversal of decades of federal law against the corrupting influence of corporate money in elections.

The decision came down in January 2010. The dissent, written by now-retired Justice John Paul Stevens, said the ruling "threatens to undermine the integrity of elected institutions across the nation … [and] do damage to this institution."

He was correct about that. Americans who already believed the system is rigged to favor those with money had their opinions affirmed. With his book and public appearances, Justice Breyer, who joined in the Citizens United dissent, now seems to be trying to repair the damage caused by his erring brethren. Good luck with that, your honor.

The University of Baltimore Law School hosts Justice Stephen Breyer at the Lyric Thursday from 6 p.m. to 8 p.m. This is a free event. RSVP at lawevents@ubalt.edu.

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