Breyer warns against remaking the court: 'What goes around comes around'

Justice Stephen Breyer welcomes the resumption of in-person oral arguments at the high court this fall.
Justice Stephen Breyer welcomes the resumption of in-person oral arguments at the high court this fall.
Elizabeth Gillis | NPR

U.S. Supreme Court Justice Stephen Breyer has a warning to those who want to remake the court: Be careful what you wish for.

In his new book, “The Authority of the Court and the Peril of Politics,” Breyer argues that over time, public acceptance of Supreme Court opinions, even those you may disagree with, has become a habit — a hard-won habit that has fortified the rule of law as an essential part of U.S. democracy.

And he points to what former Senate Democratic leader Harry Reid said about Bush v. Gore when the Supreme Court effectively ruled that George W. Bush had won the presidential election.

"He said the most remarkable thing about this case is, even though probably half the country didn't like it at all, and it was totally wrong, in his opinion and in mine, people followed it, and they didn't throw brickbats at each other and they didn't have riots," he told NPR legal affairs correspondent Nina Totenberg.

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But Reid's observation in 2000 did not match the reality of the 2020 election: Then-President Donald Trump thumbed his nose at the court and Congress, leading to the storming of the U.S. Capitol on Jan. 6. That has led many liberals to call for a radical change in American institutions, including the Supreme Court.

Breyer's view: "What goes around comes around. And if the Democrats can do it, the Republicans can do it."

Separately, Breyer told Totenberg he welcomed the resumption of oral arguments at the court, saying it fosters "human interaction."

"I think it's better to be there where you can actually see the lawyer and see your colleagues, and you get more of a human interaction," he said.

That said, Breyer said there were some advantages to the remote arguments during the pandemic because each justice asked questions in turn for just a few minutes — instead of the usual oral argument free-for-all. Breyer said that the justices and lawyers had to be more focused in their questions and answers.

"It stops me from rambling on, and that's a very good idea," he said. "And the other very good thing is Clarence Thomas asked questions each time."

Thomas, the most senior member of the court, has gone as many as 10 years without asking a question, and Breyer said it was very useful hearing his questions during the remote arguments. But Breyer conceded the COVID-19 lockdown did affect the court "negatively."

"We're not automatons. We're human beings," he said. "And I believe when human beings discuss things face to face ... there's a better chance of working things out. That's true with the lawyers in oral arguments, and it's true with the nine of us when we're talking."

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