“There are many jurisprudential differences,” Breyer said. “It isn’t really right to say that it’s political in the ordinary sense of politics.”
The court is poised to tackle issues next term that dominate the political discourse, including disputes centering on abortion, gun rights and religious liberty. The justices caused an uproar earlier this month when a 5-4 court allowed a controversial Texas law to take effect barring most abortions in the state while legal appeals play out, bringing into question the fate of Roe v. Wade, the 1973 decision that legalized abortion nationwide. Breyer dissented from the order, saying that it could threaten the clinics with “imminent and serious harm.”
Breyer told Zakaria that he is well aware that liberal groups have mounted a campaign to pressure him to retire so that President Joe Biden has the chance to appoint a younger progressive to the bench, particularly while the Senate leans Democratic.
“I don’t live on Pluto,” the 83-year-old justice said, “which means I do stay, I think, aware of what happens in the country the best I can.”
He allowed that while he will eventually retire, “because I don’t want to die there in office,” he hasn’t decided exactly when. “There are a lot of considerations,” Breyer said. “But not here, not now.”
Breyer is in the midst of promoting his latest book, “The Authority of the Court and the Peril of Politics,” based on a previous Harvard speech in which he expressed concern about the possible erosion of public confidence in the court’s opinions and criticized the practice of referring to justices by the party of the president who appointed them instead of by their jurisprudential differences.
He repeated his familiar mantra over the years, that the court is not composed of “junior varsity politicians.”
In Sunday’s interview, he said that with presidential appointments, over time, the court can adjust to political circumstances, but he rejected any notion that he is blinded by a new reality that the court has become more ideological in recent years. “If you go back into history, you know the court has had many ups and downs.”
In defending the court, Breyer said that he has never seen his colleagues trade votes and pointed to some cases over hot button issues that haven’t broken down along familiar ideological lines. He said the court responds to a public seeking the rule of law.
“It’s not too difficult to see what happens in countries and in places and in times when people don’t follow the rule of law,” he warned.
Two conservative justices this week have also argued that the court is above politics.
Echoing Breyer, Justice Amy Coney Barrett
told an audience in Kentucky that her goal was to convince it that the “court is not comprised of a bunch of partisan hacks,” according to the Louisville Courier Journal.
And in a wide-ranging speech Thursday night, Justice Clarence Thomas
said that the biggest misconception about the court is that people think the justices are like politicians.
“I think the media makes it sound as though you are just always going right to your personal preference,” Thomas said. “So if they think you are anti-abortion,” they think “that is the way you will always come out.”
“That is a problem,” Thomas said. “You are going to jeopardize any faith in the legal institutions.”