Politicians in Robes | by Laurence H. Tribe | The New York Review of Books

Politicians in Robes | by Laurence H. Tribe | The New York Review of Books

Reviewed:

The Authority of the Court and the Peril of Politics

by Stephen Breyer

Harvard University Press, 101 pp., $19.95

Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months That Transformed the Supreme Court

by Linda Greenhouse

Random House, 300 pp., $28.00

***Nor does [Justice Stephen Breyer's] book meaningfully engage with any of these difficult questions:

(1) Does the ability of the Court to serve as a politically independent guardrail against despotism or anarchy actually depend on propagating the myth that its members are immune from influence by their cultural and political orientations and occasionally their partisan affiliations?

(2) To what degree is any such myth sustainable in the face of current experience? As Justice Sotomayor said acerbically, during the December 2021 argument in the abortion case Dobbs v. Jackson Women’s Health Organization, the Court was earning the “stench…in the public perception that the Constitution and its reading are just political acts.” In his fine book The Case Against the Supreme Court (2014), Erwin Chemerinsky, dean of the law school at the University of California at Berkeley, recalls that Sotomayor, like Chief Justice John Roberts, found it useful in her confirmation hearings to describe what justices do as “calling balls and strikes,” when in fact we know they do much more than that, including, as Chemerinsky notes, deciding the rules of the game and defining the strike zone.

(3) Finally, if a “balls and strikes” myth of apolitical adjudication is indeed sustainable, is attempting to sustain it morally justifiable? Put otherwise, is it an example of the Noble Lie we must tell ourselves in order to avoid disaster—or just another Big Lie that threatens our democracy?

As a member of the commission, I couldn’t help asking myself questions like these—or hoping that Breyer’s book would help us grapple with them. No such luck. I did sense in some of my fellow commissioners the belief that we’d best avoid being too open about our conviction that a majority of the justices had become dangerously wedded to a political perspective inherently hostile to the premises of a flourishing, inclusive democracy representing all persons equally, and that three members of that majority had been added to the Court by political processes that lacked democratic legitimacy.

 The general mood seemed to be that the Court should be spared the slashing critique I was coming to believe it deserved—a critique best put forward by Chemerinsky and in powerful testimony before the commission by the constitutional scholars Nikolas Bowie, Michael Klarman, and Samuel Moyn.

These scholars made a persuasive case that throughout our history, and especially in its current configuration, the Supreme Court has by no means been a friend to politically underrepresented minorities, an ally to the rights of the least powerful among us, or a defender of the rights of all to full and equal participation in the project of self-government—the only reasons sufficient, in the minds of many, to warrant entrusting a power so vast to so politically unaccountable an institution. They have argued that giving the nation’s highest court not just the power of judicial review but of judicial supremacy—the final word on the meaning and application of a flawed but aspirational Constitution—has repeatedly been harmful to the cause of freedom and equality, with infamous decisions being the rule rather than the exception.