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By Linda Greenhouse
Ms. Greenhouse, a winner of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer for 12 years, until last month.
Two misfortunes have befallen Stephen G. Breyer during his long Supreme Court career. One, which became apparent about halfway through his nearly 28-year tenure, was that it was his fate to be the quintessential Enlightenment man in an increasingly unenlightened era at the court. The second happened during this past year: the demand from the left that he step down and open his seat for President Biden to fill.
Justice Breyer’s belief in the power of facts, evidence and expertise was out of step in a postfactual age. The protections of the Voting Rights Act were no longer necessary in the South? The Constitution’s framers meant to give the populace an individual right to own a gun? Or, more recently, the federal agency charged with protecting American workers was likely powerless to protect the workplace from a deadly pandemic?
Really? Of course, Justice Breyer was on the losing side.
To my second point, it’s not that requests for him to step down were unreasonable. It’s that they became so vociferous, so belittling, really. It’s as if this distinguished public servant could be shoved out of the way, obscuring any idea of who he is and what his time on the court has meant. That is a loss not only for him — and he certainly deserves better — but also for the rest of us, because his career has much to teach us about the state of the court today.
At 83, Justice Breyer is a decade older than the next oldest justice, Clarence Thomas, and a generation older than the youngest, Amy Coney Barrett, who turns 50 on Friday. Like five of his colleagues (Chief Justice John Roberts and Justices Barrett, Elena Kagan, Neil Gorsuch and Brett Kavanaugh), he was once a Supreme Court law clerk.
But there is a difference. He clerked for Justice Arthur Goldberg during the Supreme Court’s heroic age, the period under Chief Justice Earl Warren when the court seemed to be pushing — or dragging — post-World War II America into recognizing the equality of the races and the rights of criminal suspects. The other five came of age in the subsequent era of judicial retrenchment, that era now reaching a climax.
Although the labels often affixed to Justice Breyer are “pragmatist” and “seeker of compromise,” it has always seemed to me that these, while not inaccurate, miss the mark. They discount the passion beneath the man’s cool and urbane persona, passion that I think stems from his early encounter with a court that understood the Constitution as an engine of progress.
That passion was obvious in his astonishing 21-minute oral dissent from the bench in 2007 from a school integration decision that, early in Chief Justice Roberts’s tenure, marked a significant turn away from the court’s commitment to ending segregation. The law professor Lani Guinier, in a famous article in The Harvard Law Review the next year, celebrated that dissent as “demosprudence,” a way of speaking law directly to the people in the expectation that they will then speak back to the lawmakers.
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