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changes, such as forms of ‘court-packing,’ think long the court’s role, or the nation’s life, can make a differ-
and hard before embodying those changes in law. ence. Does it matter than I grew up in San Francisco
“I hope and expect that the court will retain its in the 1950s, that I went to a public high school, that
authority, an authority that my stories have shown I studied at Stanford, that I have led the life I have
was hard-won. But that authority, like the rule of lived? Of course it matters. I cannot jump out of my
law, depends on trust, a trust that the court is guided own skin. No one can. Those views, sometimes too
by legal principle, not politics. Structural alteration general even to articulate, can play a role in a dif-
motivated by the perception of political influence ficult, close case.”
can only feed that perception, further eroding that >> A “conservative majority,” yes. But it hasn’t
trust. There are no shortcuts to it.”
always favored conservative policies, Breyer said.
>> “Cause for concern” over threats to rule of law. “The present court is often described as having a
“There are, at least, two, which to my mind pro- ‘conservative’ majority. And the court’s decision in
vide cause for concern. For one thing, we see a the 2000 presidential election case, Bush v. Gore, is
growing public suspicion and distrust of all govern- often referred to as an example of its favoritism of
ment institutions. At the same time, we have seen conservative causes. But the court did not hear or
a gradual change in the way the press (along with decide cases that affected the political disagreements
other institutions that comment upon judicial work) arising out of the 2020 (Trump v. Biden) election.
understand the judicial institution. Several decades It did uphold the constitutionality of Obamacare,
ago, for example, few if any of these commentators, the health care program favored by liberals. It did
when reporting a decision, would have mentioned reaffirm precedents that favored a woman’s right to
the name or political party of the president who an abortion. It did find unlawful certain immigra-
nominated a judge to office. Today the press does so tion, census, and other orders, rules or regulations,
as a matter of course. Going further, it systematically favored by a conservative president. But at the same
labels a judge as ‘conservative’ or ‘liberal.’ time it made other decisions that can be reasonably
“Senators will often describe a nominee they op- understood as favoring ‘conservative’ policies and
pose as too ‘liberal’ or too ‘conservative.’ What they disfavoring ‘liberal” policies.’”
say, reported by the press to their constituents, rein- >> Breyer suggests how to maintain acceptance
forces the view that politics, not legal merits, drives of rule of law.
Supreme Court decisions. These are more than “One way of doing so is for the court to apply
straws in the wind.” legal rules or practices that will minimize the num-
>> Politics is “not present at the court,” Breyer ber of cases likely to produce strongly felt political
disagreements. What can people outside the court
said.
“Justices tend to believe that differences among do to help maintain the public’s confidence in the
judges mostly reflect not politics but jurispruden- court’s and the law’s authority? Education, participa-
tial differences. That is not what the public thinks. tion, practice in cooperation and compromise aim
When I hear the word ‘political,’ I think of my work to build public trust in the working of our demo-
at the Senate Judiciary Committee. … Who elected cratic institutions.
you? Are you a Democrat or Republican? Which po- “Trust in the court, without which our system
sition is more popular? Where are the votes? Politics cannot function, requires knowledge, it requires un-
in this basic sense is not present at the court. derstanding, it requires engagement—in a word, it
“But what about ideology? This is a closer ques- requires work, work on the part of all citizens. And
tion. But if I find myself deciding a case on the basis we must undertake that work together.”
of a general, overall ideology, I know I have done the ¦

wrong thing. My colleagues believe the same. And Marcia Coyle, based in Washington, covers the U.S.
where a matter is open, a judge’s background, ex- Supreme Court. Contact her at [email protected].
perience, and personal views about law’s objectives, On Twitter: @MarciaCoyle

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