Washington Monthly - September/October 2021 - 100

ed to long-dead Framers, but to the realworld
consequences of a legal outcome.
For Breyer, those consequences are to be
assessed for their contribution (or detriment)
to " active liberty, " the ability of
ordinary citizens to participate in democratic
self-government. That liberty, he
The current Court may have a
marble palace, it may swathe
itself in deference, it may guard
its internal secrecy, but it is of
little value to anyone unless it
serves to defend the American
project of self-government under
law. That duty has already been
stripped from it by the rawest
of politics, and demanding
reverence from the rest of us is
not only futile but also a bit silly.
has argued in the past, is the aim of the
Constitution, and interpreting its words
without understanding that purpose is,
well, simply not playing the game.
This concern with consequences, coupled
with a lucid grasp of administrative
law and practice, has given rise to some
brilliant opinions. My own favorite is his
dissent in McCutcheon v. Federal Election
Commission. In McCutcheon, Chief Justice
John Roberts, writing for a plurality,
briskly invalidated a federal statute limiting
the number of candidates a wealthy
donor could back in one federal election
season and the total amount such a donor
could give across the board. The case
did not challenge the upper limit on each
individual contribution, but the federal
government argued that striking down
the other limits would make the remaining
one hard to enforce. Scalia waved
away such hesitation: If donors overstepped,
Scalia said, then the FEC would
simply fine them. In his dissent, Breyer
outlined in detail the precise ways that
the rich would use to circumvent the FEC
100 September/October 2021
(as they have)-then added that Scalia's
trust in FEC enforcement reminded him
of Oscar Wilde, who said of the death of
Little Nell in Charles Dickens's Old Curiosity
Shop, " One must have a heart of
stone to read [it] without laughing. "
As the above suggests, Breyer lives in
a world of his own. Sometimes
(as in McCutcheon)
it intersects with the
world the rest of us inhabit.
But other parts of
it do not. Breyer lays out
the view from those other
parts in his new book,
The Authority of the Court
and the Perils of Politics.
And it must be said-
even by a Breyer admirer
like me-that in this
particular innings it is he
who is on a weak wicket.
The book is based on
a lecture Breyer delivered
on April 7, 2021-
after
the
contentious
2020 election, the murderous
Trumpite invasion
of the Capitol, the
movement to enlarge or revamp the Supreme
Court, and the demands from
some Democrats that Breyer retire. Breyer's
defense of the Court acknowledges
none of this. But it must be read, at least
by implication, as a critique of the project
of Court reform and an apologia for
his own decision to remain on the Court
at the age of 82 rather than allow President
Biden to appoint a younger liberal
justice. The defense of the Court and
of judicial review he offers is such an assemblage
of bromides-so close to the
boilerplate in any old American government
text, and so far from the reality
of contemporary American public life-
that I, too, am reminded of Oscar Wilde.
The book is, however, not funny. Read
it and weep.
I
n Breyer's recounting, the Supreme
Court's value derives from its perceived
legitimacy: " the public's willingness
to respect its decisions-even those
with which they disagree, and even when
they believe a decision seriously mistaken. "
Current proposals to change the
Court's functions or size risk destroying
that willingness, he argues, and thus
" the rule of law itself. "
Public acceptance of the Court has
served the nation well, Breyer says. To
reach that conclusion he provides a distinctly
tarted-up version of the Court's
history. True, that unfortunate Dred
Scott business caused a spot of bother.
But that seems to be the only blot Breyer
is willing to concede. Plessy v. Ferguson,
with its endorsement of segregation,
does not rate a mention, nor do
the Civil Rights Cases, which invalidated
the visionary Civil Rights Act of 1875.
Giles v. Harris, which rendered the Fifteenth
Amendment unenforceable on
the grounds that white southerners
wouldn't obey it, has a cameo, but Breyer
seems to find it a prudent decision about
the limits on Court's authority rather
than a cynical surrender to racism. Lochner
v. New York and the Court's 50-year
vendetta against economic and labor reform
barely rates a mention.
Throughout this history, Breyer says
repeatedly, we can all take satisfaction
in " the general tendency of the public to
respect and to follow judicial decisions. "
Take that respect away and
what, then, would have happened to
all those Americans who espoused unpopular
political beliefs, to those who
practiced or advocated minority religions,
to those who argued for an
end to legal segregation in the South?
What would have happened to criminal
defendants unable to afford a lawyer,
to those whose houses government
officials wished to search without
probable cause, to those whose property
government wished to seize with
little or no compensation?
That's an excellent question, but an
incomplete one-for no history of the
Court can have any worth if it does not
also ask what did happen to the generations
of Black Americans doomed to segregation
after the Civil Rights Cases and
Plessy, to the generations of children
who coughed their lives out in the mines
and mills after the Court voided federal
Washington Monthly - September/October 2021

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