Editor’s Note: This story was first published on October 14, 2021. CNN has since reported that Justice Stephen Breyer plans to retire.
Justice Stephen Breyer is not giving up on the Supreme Court.
In a wide-ranging interview with CNN on Wednesday, the senior liberal justice expressed caution about some of the ideas raised before the presidential commission studying the Supreme Court, asserted the importance of people accepting rulings they dislike, and insisted that despite the discord seen recently in opinions, the justices get along.
“It’s an institution that’s fallible, though over time it has served this country pretty well,” he said. “As Mother used to say: every race, every religion, every point of view possible is held by people in this country. And it’s helped them to live together.”
Breyer’s message has been something of a tough sell, as the nation has grown more polarized and the high court itself has been increasingly riven along political lines. Some critics regard his view as too idealized for the current tumultuous climate.
Yet Breyer, who has been promoting a new book, “The Authority of the Court and the Peril of Politics,” emphasized that controversy over the Supreme Court is as old as the court itself.
“It’s always been controversial,” he said, yet people have traditionally accepted decisions even “that they think are really wrong. … And yet if they don’t, we won’t have a rule of law.”
Breyer’s conversation with CNN comes as the 36-member presidential commission is expected to begin releasing materials related to possible reform proposals. President Joe Biden established the commission as a compromise with liberals who had been pressing him to support an increase in the number of the seats on the high court, to try to counterbalance the current 6-3 conservative dominance.
Breyer said he had not read testimony the commission has taken since last spring and declined to comment on its mission. But he repeated his concern about so-called “court packing” proposals and expressed caution on other ideas raised, including for greater transparency regarding the justices’ process for deciding which cases to take up and their swift action in some disputes without full briefing and arguments.
In his book, Breyer contends divisions among the current justices – six Republican-appointed conservatives and three Democratic appointed liberals – do not arise from political or ideological differences. Rather, he says, they are jurisprudential, tied to their methods of interpreting the Constitution and federal statutes.
Responses to Breyer, after more than a month of his book tour, have been mixed. At an event sponsored by the Smithsonian Associates last week he was heckled by protesters who claimed he was ignoring assaults on American democracy and urged him to retire.
The court has seen deep splits among the justices, notably on disputes over Biden administration policy and the recent order allowing Texas to institute a near ban on abortions at six weeks of pregnancy.
Breyer voted against that order allowing a law that conflicts with R