Justice Breyer on ‘procedural decision’ behind Texas abortion law, politics on the bench

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• Judy Woodruff:

  Justice Stephen Breyer heads into a new Supreme Court term soon, facing a docket of hot-button issues and pressure from progressives to retire.

  I spoke earlier today with the court's senior liberal justice about his new book, "The Authority of the Court and the Peril of Politics."

  Justice Stephen Breyer, thank you very much for joining us.

  You have written six other books, but none of them were this size, a book you can hold in one hand, somehow less intimidating than the book you pick up from a Supreme Court justice.

  Who are you trying to reach?

• Stephen Breyer, U.S. Supreme Court Associate Justice:

  I wanted to reach the high school students, college students, law school students, and, in particular, people who are not lawyers, but who are interested at least in how I have seen the court work over 27 years.

• Judy Woodruff:

  You posit in the book, Justice Breyer, that the court at a — even in this fraught political time, that the Supreme Court of the United States has managed to maintain its authority with the American people.

  And, at one point you cite a Pew poll in 2019 that showed 62 percent of Americans had a favorable opinion of the court. But there is a Marquette University Law School poll out just this month that shows approval of the court is at 49 percent.

• Stephen Breyer:

  Then it went down. But polls go like that.

  And the question — the one difference, I think, between the court, if I had to pick one, and other government institutions is, we move on a different time frame. We have a slow time frame. I think our cases are not well-decided, usually, unless we have time to think about it.

  And if you were there, you would discover the same thing. Instead of having to get out something in two hours, you would have two months or three months or four months. And lots of other people have worked on this case. And you have a lot of briefs and a lot of information. And you sit back and digest it and try to see a bigger picture.

• Judy Woodruff:

  And it's on that basis, among others, that you argue that the court is not politicized.

  You cite cases in recent years that didn't go, you said, as one might thought, based on which president nominated which justice.

  But we did just see, Justice Breyer, a majority of the court allow a clearly unconstitutional law to take effect in the state of Texas that violates the rights of women. The majority even rejected the chief justice's alternative, temporarily blocking it from going into effect until lower courts could take a look.

  What about that?

• Stephen Breyer:

  Well, it was a procedural decision. It wasn't — they didn't speak, no one did, on the merits of the Texas law.

  And on that procedural decision, I dissented, along with the chief justice and others. And the reason was just what we have been talking about. It was an important case, even procedurally, on those emergency matters. And so four of us thought we should take more time.

  Now, that was really the issue. And five thought, no, we should go ahead. And there we are.

• Judy Woodruff:

  Procedural, and yet it has real-life, human consequences for women in the state of Texas.

• Stephen Breyer:

  I could not agree with you more. That was one of the reasons I wanted to take it easy, time. My own dissent was, block the law until we can have the time to figure out just what is going on.

  Now, that I — of course, I think I'm right. I think I'm right whenever I dissent, I think — I always think I'm right. That's why I write what I write. But no one in the United States is going to get decisions that he or she likes all the time.

• Judy Woodruff:

  You argue — so much to ask you about in this book, Justice Breyer.

  You write early on that the news media partly responsible, you say, for changing public perceptions of the court. But what about the court itself, the decisions the court makes?

  I mean, the court has made the decision, for example, to take up the 15-week Mississippi abortion ban, which you're going to be hearing in December, even when a very conservative lower court had found that unconstitutional. The Supreme Court made the decision to take it up.

• Stephen Breyer:

  Four votes takes it.

  And so I can't really go into — I can't even tell you who were the four. So you're not sure. And maybe you are fairly sure, but nonetheless, it's in — what's in their minds, what's in their minds.

• Judy Woodruff:

  But my point is, that's a court decision to tackle that.

• Stephen Breyer:

  It's a court decision that four people grant cert.

  If it's to grant a full hearing, it takes four people.

• Judy Woodruff:

  And, in that vein, coming up this term, you have the Mississippi case. You have a New York guns case. You may have an affirmative action case.

  Won't the court itself be responsible for how the public sees it, if we see — if we end up seeing a series of one-sided decisions on these — some of these hot-button cases like this just in the next few terms?

• Stephen Breyer:

  Well, of course the court will be responsible.

  But what that means, to me, is, there are large numbers of hot-button cases. I mean, think of the Warren court and its efforts to desegregate the South. Think of Justice Brennan and the major cases that he wrote on free speech. Think of the New Deal court that was making changes of really a dramatic nature.

  Think of the court after the Civil War compared to the court before the Civil War. There are very long periods of time where the court does change its outlook. And looking at that kind of thing, it's not exactly what the ordinary person means by political. It's not that they're junior varsity politicians.

• Judy Woodruff:

  You and Justice Amy Coney Barrett are both now speaking publicly about how the Supreme Court is not political.

  But if someone's a Democrat or an independent, and they see a Republican denied even a Senate vote for a very qualified candidate like Merrick Garland, if they then see the Senate rules change so that a Republican nominee, Neil Gorsuch, can be confirmed, then a partisan vote confirmed right — what, a week, less than a week before a presidential election, confirms Republican appointee Justice Barrett, that sounds like a political stacked deck to many Americans.

• Stephen Breyer:

  That is one of the most amazing things, because I agree with you 100 percent, that the process, the process of appointing a judge — me, too — it seems very political, yes.

  But what's an astounding thing — and I have learned that over more than the 27 years — is when a man or woman puts on a judicial robe — I mean, I put on that robe many years ago. And one of the great mores of both the Supreme Court and the lower court — and you absorb it over time — is, it's a great honor to be a federal judge. It is a great privilege.

  And one of the things that comes along with that privilege is that you are there not for the Democrats, not for the Republicans, not for the party of the president who appointed you.

• Judy Woodruff:

  You also write, Justice Breyer about the danger of trying to remake the court, adding justices, making other changes.

  The question comes up about term limits for justices. Why doesn't it make sense for at least our United States Congress, for a president to look at that? There's — as you know, there's a commission looking at it right now. Given…

• Stephen Breyer:

  Well, term limits, the term limits, I have said often quite a lot, for over a period of years, I see no objection really to term limits, if they're long.

  You don't want to short term, because you don't want the person in that job thinking about his next job. But if they're long terms. I don't think there'd be a big difference.

• Judy Woodruff:

  Is there any other change to the court that you think, in your mind, would not do harm to the to the institution?

• Stephen Breyer:

  I haven't thought — what I said about the term — about the — expanding the court is, I said, you have to think carefully about it.

  And I want people to think about it before they jump into something like that, in light of the history. Primarily, that history is in there because I want people to understand how long a time it's taken in our history before people are willing to accept courts as making decisions that normally they should follow.

  And, indeed, that's part of a rule of law. That's a little abstract. But we have 301 million people in this country holding themselves together, every race, every religion, every point of view. Why? Because they will accept this document, the Constitution, as setting forth a rule of law for resolving many, not all, disputes among them.

  Now, it's better than the alternatives. That's what Churchill said, or somebody said. And they're sure right, because the alternatives are violence and war and all kinds of trouble.

• Judy Woodruff:

  It's not in the book, but I want to ask you about your future.

• Stephen Breyer:

  Yes.

• Judy Woodruff:

  And you have said you won't answer questions about it, but you have said that, as of now, you have no plans to retire.

  My question is, after 27 years on the court, what time frame are you talking about? In the coming year? Are you saying you don't plan…

  (CROSSTALK)

• Stephen Breyer:

  Well, what I actually have said, which I'm happy — not happy, but I'm certainly willing to repeat, but I mean, I have said that it's in my mind that, of course, there are many different considerations.

  And I haven't made up my mind definitely just exactly when. But I don't want to die on the court. And, before then, I would like to retire. And just when that will be, I have not fully decided. And I think this isn't the place or the time where I want to go into it in depth.

• Judy Woodruff:

  Have you spoken with other justices about that?

• Stephen Breyer:

  That's one of the things I haven't answered yet.

  (LAUGHTER)

• Judy Woodruff:

  How about, have you spoken to President Biden about it?

• Stephen Breyer:

  That's one of the things. If I start down that road: "Who have you talked to about it?"

  But…

  (LAUGHTER)

• Judy Woodruff:

  The idea — you and I were just speaking about this. The idea of retiring for anyone is a difficult question.

• Stephen Breyer:

  Oh, well, it might be much nicer for me personally if there were a long time limit. I wouldn't have to worry about this.

  (LAUGHTER)

• Judy Woodruff:

  But you have known others who've wrestled with the decision.

  Do you think there's a right way to think about it and a wrong way?

• Stephen Breyer:

  I have looked at what people have done in the past.

  Now, I have gone beyond what I said.

  (LAUGHTER)

• Stephen Breyer:

  But I just — I will go that far. I will say, I have looked at what people have done in the past.

• Judy Woodruff:

  Including other justices?

• Stephen Breyer:

  Oh, those are the ones who are most relevant, yes.

• Judy Woodruff:

  Justice Breyer, do you think it makes a difference, when you step down, whether there's a — not only a Democrat in the White House, but a Democratic majority in the Senate?

• Stephen Breyer:

  Yes, probably.

  I mean, I don't know for sure. No one ever knows. And to what extent you take that kind of thing into account, it's a personal decision. Justice Scalia, Justice Rehnquist have said you do take that kind of thing into account. Others have been more reluctant to do it. So it's in the mix.

• Judy Woodruff:

  In the mix.

  Different question…

• Stephen Breyer:

  Good.

  (LAUGHTER)

• Judy Woodruff:

  … finally, about the court.

  And that is, the court consists almost entirely of justices who graduated from Harvard or Yale Law School, almost entirely of justices who've been appellate court judges.

  No one since Justice Sandra Day O'Connor has faced a voter. Do you think it would be healthy for the court, good for the country…

• Stephen Breyer:

  Yes.

• Judy Woodruff:

  … to have justices face…

• Stephen Breyer:

  Yes.

  I mean, look at Justice Black, a great justice. He'd been a senator. Earl Warren had been a governor. Harold Burton had been the mayor of a city. And you don't want all one thing or another thing, but having a mix of backgrounds, a mix of different experiences, other things being equal, is good for the court, in my opinion.

• Judy Woodruff:

  Justice Breyer, thank you very much.

  The book is "The Authority of the Court and the Peril of Politics."

  Thank you.

• Stephen Breyer:

  Thank you.