Washington Monthly - September/October 2021 - 101

on political books
child labor laws, to the workers who lost
the right to unionize when the Court
invalidated restrictions against " yellow
dog " contracts, to the 120,000 Japanese
and Japanese Americans confined
in concentration camps approved in Korematsu
v. United States, to Native people
whose religious practices the Court has
treated with contempt in Lyng v. Northwest
Indian Cemetery Protective Association
and Employment Division v. Smith, to
the victims of police violence who to this
day can never receive justice because of
the Court's extreme solicitude for law
enforcement, to the inmates who die in
agony because the Court has lost interest
in policing states' grotesque methods
of execution?
Has the Court really, on the whole, advanced
human rights and democracy
more than it has retarded them? There
is a serious case to be made that American
society would be freer and happier
without the Court's periodic invalidation
of federal and state statutes-that
Congress has been over time a far more
dependable steward of individual rights
than has the Court (or the executive
branch). Congress wrote the Thirteenth,
Fourteenth, and Fifteenth Amendments
as a rebuke to the antebellum Court;
a century later, the House and Senate
passed the Civil Rights Act and the Voting
Rights Act, the twin pieces of legislation
that actually brought down southern
apartheid.
Breyer surely knows of that argument,
but he is unwilling to confront it. Though
he admits that the Court has had " ups
and downs, " we are by and large asked to
take its majesty on faith.
B
ut the Court's past, even if it were
as glorious as Breyer claims, has
only limited relevance to the present Supreme
Court of the United States. Today's
Court is quite a different kettle of
fish from the Court as it existed even as
recently as February 2016, when Antonin
Scalia died.
Since then, the public has seen one party
relentlessly assault all democratic and
legal norms in its stunningly successful-
and shamelessly explicit-campaign to
make the Court into a guarantor of rightwing
policy and one-party rule. The abduction
of the seat left empty by Scalia;
the banana republic-style installation
of the accused rapist Brett Kavanaugh;
and finally the brutal hypocrisy of jamming
Amy Coney Barrett into Ruth Ginsburg's
former seat, have been too blatant
and too recent for millions of Americans
to ignore. And lecturing the people-
telling us we should pretend we didn't
see these acts-just will not do.
As lectures on judging go, Breyer's is
surprisingly devoid of evidence. He insists
that judges do not make political
decisions. But he bolsters this simply by
saying it must be true since they don't
think of themselves as making political
decisions, a tautological assurance we as
good citizens must accept. Nobody required
Stephen Breyer to write this book
at this time. But having decided to weigh
in on these issues, he owes the nation a
decent respect for its intelligence.
He also owes more respect for himself,
and specifically his past experience. As a
former Senate staffer, Breyer should be
far more aware of the institutional realities
than this book suggests. As the proponent
of active liberty, he should understand
that institutions are worthy of
our concern only if they actually serve
to make a democratic system better. The
rest of us do not exist to exalt the Court;
justices, no matter how lofty, are our servants,
not the other way around.
The Court's legitimacy, then, is to be
regained, if at all, either by the Court's
willingness to give up its current role
as partisan enforcer (witness the recent
voting rights, gerrymandering, and campaign
finance decisions) or by the intervention
of the parts of our political system
that still believe courts are a part of,
not set above and immune from, democracy.
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. It is akin to Dickens's
Sir Leicester Dedlock and his noble
friends in Bleak House, who deplored the
lack of public faith in the peerage, " as
though a low fellow should unaccountably
lose faith in a bad shilling after finding
it out! "
But uncritical reverence is what Breyer
demands of us. He criticizes the media,
which must stop referring to justices
by noting the president who appointed
them or even describing them as " liberal "
or " conservative. " He also instructs
senators to cease describing nominees
as " too liberal or too conservative, and
thus 'outside the mainstream.' " And he
tells schools to teach civics once again,
so that students understand the importance
of the Court.
Given the present conditions, these
claims are obviously exasperating. But
they're also somewhat sad. There is an
elegiac tone about The Authority of the
Court, a threnody to what judging used
to be, with echoes of Dylan Thomas:
Good men, the last wave by, crying
how bright
Their frail deeds might have danced
in a green bay,
Rage, rage against the dying of the
light.
Is Breyer determined to rage, to serve
as a justice on the Court until he is bloody
well ready to leave it, actuarial charts be
damned? This book suggests he might.
Being myself well beyond the biblical
threescore years and ten, I would never
tell such a good man that it is time for
him to go gentle into that good night (especially
since nothing seems more likely
to wedge him into place than such demands
by a motley crew of activists and
law scholars).
But I will say this: Anyone who really
believes in the Little Nell vision set out
in this book has been looking down from
an Empyrean height at the rest of us for
far too long.
Garrett Epps is legal affairs editor of the
Washington Monthly. He has taught constitutional
law at American University, the University
of Baltimore, Boston College, Duke, and
the University of Oregon. He is the author of
American Epic: Reading the U.S. Constitution.
Washington Monthly
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