Retired Supreme Court Justice Stephen Breyer warns his colleagues not to “write too rigidly” in their opinions, saying such decisions could “bite you in the back” in an ever-changing world.
In a wide-ranging interview with CNN’s Chris Wallace on “Who’s Talking to Chris Wallace,” which debuted Friday on HBOMax and aired Sunday night on CNN, Breyer also complained about his position in his minority liberal bloc court during his final year on the bench. referred to the court’s overturning of Roe v. Wade and discussed the ongoing controversy surrounding Ginni Thomas, the wife of Justice Clarence Thomas.
Breyer said it was a “very frustrating” place to be in as he found himself dissenting in a series of historically consequential cases where he said the majority side (conservatives — though the retired justice didn’t use that description) was unwilling to bend.
“You start writing too rigidly and you’ll see, people will come around and bite you in the back,” Breyer said in his first televised interview since leaving the bench earlier this year. “Because you’ll find something you see just doesn’t work at all. And the Supreme Court, somewhat unlike others, has this problem in spades.”
“Life is complex, life is changing,” Breyer added. “And we want to preserve as much as we can – everyone does – certain basic moral political values: democracy, human rights, equality, rule of law, etc. To try to do this in an ever-changing world. If you think you can do that by writing 16 computer programs – I just disagree.”
Breyer’s comments come just days before the Supreme Court begins its first term without him in nearly 30 years. In the new term, the justices will consider issues such as voting rights, immigration, affirmative action, environmental regulations and religious freedom – areas where solid conservative majorities can easily control outcomes.
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During his last term on the bench, Breyer was often in the minority on some of the court’s most popular cases, including those involving abortion, gun rights and the environment. He told Wallace that being in the minority in those cases was “very disappointing,” but said he took the losses in stride.
Breyer weighed in on the court’s controversial decision in June to overturn Roe v. Wade, growing visibly emotional as he discussed the historic abortion rights case.
“And you say I liked that Dobbs decision? Of course I didn’t. Of course I didn’t,” said the retired judge, his voice rising.
“Was I happy about it? Not for a moment. Did I do my best to convince people? Of course, of course. But here we are and now we continue. We’re trying to work together.”
Breyer also condemned the leak earlier this year of the draft opinion to overturn Roe, saying the unprecedented breach of court protocol “was very damaging.”
CNN
“Was there an earthquake inside the courthouse?” Wallace asked.
“An earthquake?” Breyer replied. “It was very damaging because that doesn’t happen. It just doesn’t happen. And here we are.”
Other justices also slammed the leak — including Justice Elena Kagan, who earlier this month called it “horrific” — and public opinion of the high court worsened after the leak.
Chief Justice John Roberts ordered an internal investigation into the leak shortly after the leak, and Kagan said recently that she expects the justices to be briefed on the investigation by the end of September.
Breyer was careful during the interview not to get caught up in drama surrounding the political activism of Ginny Thomas, whose support for former President Donald Trump’s re-election efforts has come under scrutiny given her husband’s involvement in a case that was before the Supreme Court. parliamentary inquiry on 6 January.
Asked if he believed that Ginny Thomas’ political activity was detrimental to the court’s position, Breyer replied: “I don’t take issue with that, as I strongly believe that women who are wives, including wives of Supreme Court justices, should the decisions about how to live their life, career, what kind of career, etc., for themselves.’
He added: “I’m not going to criticize Ginny Thomas, who I like. I’m not going to criticize Clarence, whom I like. And here we are.”
Reflecting on his nearly three decades on the Supreme Court, Breyer supported the idea that relations between conservative and liberal justices have soured as he neared retirement, admitting that “at times” it seemed like there were two separate camps on the bench.
“Less than you think. Less than you think… but I can never tell,” he said.
Breyer said the court, long known for its collegiality, has changed somewhat in recent years, using the “pleasant” conversations that typically occur between justices over lunch after a case is heard as an example of the shift.
“Maybe a little less cheerfully, but I don’t mean — I haven’t heard people in that boardroom screaming at each other in anger,” he said.
“What you’re doing is what I learned from (Justice) Arthur Goldberg when I was his lawyer and I tried to live up to it. And I also learned that from Senator (Ted) Kennedy when I was working for him,” Breyer said. “You do your best, you know, and maybe people will agree. And maybe they don’t. And you might win. And you might lose. And then what you do is think about it for a while.”
“Go on to the next thing so you can do a decent job at the next thing,” he added. “And just keep going.”
Breyer, who announced his retirement plans amid pressure from liberals who wanted him to leave the court while Democrats controlled the Senate and President Joe Biden was in office, said he decided to step down now because he was worried if Republicans took over the room. he was forced to sit on the bench for years while the GOP blocked the nominee for President.
“There have been delays, you know, when the party is divided between control of the Senate and control of the presidency,” Breyer said. “And sometimes, it’s been a long time and I’d prefer that my own retirement, my own involvement on the court, not get involved in what I call these purely political issues.”
