Liberal Supreme Court Justice Stephen Breyer warned during a Fox News interview with anchor Chris Wallace that any attempts to expand the Supreme Court could undermine its legitimacy.
“I don’t intend to die on the court,” Breyer told Wallace, later adding that there were “many considerations” that factor into his decision-making when it comes retirement.
When asked about a push from Democrats to expand the Supreme Court, Bryer responded, “Well, if one party could do it, I guess another party could do it.”
“On the surface, it seems to me you start changing all these things around, and people will lose trust in the court,” Breyer added.
CHRIS WALLACE, FOX NEWS ANCHOR: He’s been a Supreme Court justice for 27 years, and is now the target of a new push by liberals who want him to step down so he can be replaced by someone younger. That makes it all the more timely that Stephen Breyer has just come out with a new book, called “The Authority of the Court and the Peril of Politics,” where he discusses the very real threat the court will get caught up in today’s polarized debate.
I sat down recently with Justice Breyer for an exclusive one-on-one.
WALLACE: Justice Breyer, welcome back to “Fox News Sunday.”
STEPHEN BREYER, SUPREME COURT JUSTICE: Thank you.
WALLACE: I want to start with the premise of your book. You quote Alexander Hamilton as saying that the judiciary has neither purse, like Congress, nor sword, like the executive, and so it has to rely on public acceptance for its authority. Is the public acceptance — is the authority of the court in jeopardy?
BREYER: Hard to say. I mean, I don’t think — I’m an optimist, you know, and so I think, well, people understand, to some degree, why it’s a good idea what Hamilton thought. And he thought the court should be there because there should be somebody, somebody who says, when the other two branches of the government have gone outside the confines of that document, who’s that, the president? Well, he was a little worried the president might say whatever he did was right. Congress? Well, some countries do have that. And a member of Congress knows what’s popular. If he didn’t know what was popular, he won’t be there — or she won’t be there for a long time.
But this document is made for unpopular people, just as much as for popular people. So —
WALLACE: I’m curious — I’m curious, do you carry a copy of the Constitution with you, or just for TV?
BREYER: No, not just for TV. It’s always in my pocket, and I hope I will put a jacket on that has one in my pocket, because you never know when somebody’s going to ask a question.
WALLACE: Which brings us to the second half of the title of your book, “The Peril of Politics.” You say that if people come to view judges, justices, as politicians in robes, that that undercuts the authority of the court.
BREYER: To a degree, I think it would. I mean, junior league politicians. Hey, if you want to have a politician, let’s have a senior league politician.
WALLACE: One of the most interesting parts of your book, you say at one point, it’s wrong to think of the court as a political institution. But then you quickly add, to say that there’s a complete divorce between the court and politics isn’t quite right either.
BREYER: Yes, exactly.
WALLACE: So which is it?
BREYER: When the court — in what I think was one of its, perhaps its greatest decision, said the words of this Constitution, which say equal protection of the law, mean that you cannot have racial segregation by law.
When they said that, a few years later, a case comes up about marriage between a black man and a white woman. Ha, did they hear that and say it was illegal? Frankfurter said — I believe it was Frankfurter, don’t take it now. Hear the case later.
Why? Because they were having a very, very, very hard time getting the South to accept their ruling. And so they’re interested in that. And Earl Warren, of course, was a great political figure. And I’ve always thought — I have no evidence — but I’ve always thought that his experience in politics there led him to think, let’s not take it now.
Eventually they took it and they said, of course, people of different races can get married. Of course. But that timing — that timing is the kind of thing that, well, the law books don’t teach you that. It’s not there in the [treatises]. You see what I mean?
WALLACE: In other words, even the court can’t go too far too fast.
WALLACE: So let’s pursue that.
You say judges should not play politics, they should not push ideology, but they do have different jurisprudential philosophies. And I want to quote you, specifically. You write, “Some judges emphasize text and history, some emphasize purposes and consequences.”
But, Justice Breyer, isn’t that a bit of a copout because don’t the judges, the textualist[s], almost always tilt conservative, and don’t the consequences justices — you’ve been accused of being that — generally lean liberal?
BREYER: I don’t know. I mean, it’s so easy to say. And there is a recent case involving gay rights — rights in the workplace, not to be [fired] because of sexual discrimination.
WALLACE: Right. Right, right.
BREYER: That was made up of a group of people, the majority there, who — they included people who emphasized consequences, and they included people who emphasized absolutely pure text. You see?
WALLACE: One of your arguments against seeing the court as political is the fact that it refused to ever hear the appeals from the Trump camp about the 2020 election, didn’t even hear them.
(BEGIN VIDEO CLIP)
DONALD TRUMP, FORMER U.S. PRESIDENT: No judge has had the courage, including the Supreme Court. I am so disappointed in them. No judge, including the Supreme Court of the United States, has had the courage to allow it to be heard.
(END VIDEO CLIP)
WALLACE: Why was that?
BREYER: Why was it? Because they didn’t bring a case, I guess, that met the normal criteria for being heard. When we decide to take a case, there have to be four votes to take it. So I can’t go beyond that.
What we do know is that there were not four votes to take it because it wasn’t taken. And there are criteria, and if we don’t take a case it’s, you know, I mean the reason was — in all likelihood is that the criteria weren’t met.
WALLACE: One of the problems that you discuss in your book is the growing partisanship of the confirmation process. Back in 1994, you were confirmed by the U.S. Senate 87 to nine.
Question: do you think, in 2021, as a former staffer for Edward M. Kennedy —
WALLACE: There’s any chance you would get 87 votes?
BREYER: I know what you’re saying and the answer is, of course, no.
WALLACE: Look at what Senator Mitch McConnell did. In 2016, he refuses to give Merrick Garland even a hearing in the eight months before the election. And then, in 2020, he pushes through Amy Coney Barrett in one month before the election.
Doesn’t that undercut the authority of the court?
BREYER: I was confirmed, and I was nominated. And the confirmation process and the nomination process, well, I say, usually when you ask me about that, and people do, I say it’s like asking for the recipe for Chicken a la King from the point of view of the chicken.
And — and I will say —
WALLACE: I — I — that —
BREYER: Yes, that’s a [flip] joke.
BREYER: But the truth of the joke is, that’s not — that’s the political environment. Now, you may disapprove of it, I may disapprove of it, and if enough people in the public want it to change or be modified one way or the other, it will be.
WALLACE: I interviewed your colleague, the late Justice Antonin Scalia, back in 2012. And I want to play a clip from that interview.
Take a — take a look.
(BEGIN VIDEO CLIP)
WALLACE: Will you time your retirement so that a more conservative president can appoint a like-minded justice?
ANTONIN SCALIA, FORMER ASSOCIATE JUSTICE ON U.S. SUPREME COURT: I would not like to be replaced by someone who immediately sets about undoing everything that I’ve tried to do for 25 years, 26 years, sure. But I mean, I shouldn’t have to tell you that, unless you think I’m a fool.
(END VIDEO CLIP)
WALLACE: Do you agree with Scalia that a justice who is unmindful of the politics of the president who replaces him, who’s unmindful of that, is a fool?
BREYER: I [don’t] intend to die on the court. I don’t think I’ll be there forever. But — but I’ve — I’ve said a few of the considerations previously and I — I think —
WALLACE: But do you think the consideration that Scalia mentioned, I don’t want to be replaced by somebody who’s going to undo everything that I’ve spent —
BREYER: That I’ve done? That I’ve — undo everything I’ve done?
BREYER: I see the point. And probably, in your background, there’s — can be something. There are many considerations. Many, many considerations.
WALLACE: This brings us to the calls for you to step down while a Democratic president and a [Democratic] — can appoint your successor and a Democratic Senate can confirm your successor. Here’s one example of that.
(BEGIN VIDEO CLIP)
SEN. AMY KLOBUCHAR (D-MN): He makes his own decision about if he’s going to retire. But he’s going — if he’s going to retire, it should be sooner rather than later if you are concerned about the court.
(END VIDEO CLIP)
WALLACE: What do you think of those calls?
BREYER: Well, I think that they’re entitled to their opinion. I think they — and not only they understand the political world much better than I, or they understand it pretty well. And there we are. What else you want me to say?
WALLACE: They would say you ignored those calls and increased the chances that a Republican Senate will be there to confirm your successor.
BREYER: Well, I mean, there are factors. There are many factors. In fact, quite a few. And the role of the court and so forth is one of them and the situation, the institutional considerations are some and — and I — I believe — I can’t say I’d take anything perfectly into account, but in my own mind I — I think about those things.
WALLACE: So why didn’t you retire?
BREYER: I didn’t retire because I had decided on balance I wouldn’t retire.
WALLACE: President Biden has appointed a commission to come back to him in November and discuss — weigh in on possible reforms to the court.
What do you think of the idea of increasing the number of justices on the court?
BREYER: Well, if one party could do it, I guess another party could do it.
And the more thing — I mean it’s fairly surface — on the surface, it seems to me you start changing all these things around, and people will lose trust in the court.
WALLACE: What about term limits? People, even justices, live a lot longer now than they did back in the 18 century. Would it lower the political heat if, say, a justice served for 18 years instead of a life term?
BREYER: Well, I think you could do that. It should be a very long-term because you don’t want the judge who’s holding that term to start thinking about his next job. But it would make life easier for me.
WALLACE: You just turned 83 years old. I’ve got to say, you look terrific. You’re of sound mind and body.
BREYER: Thank you. Thank you.
WALLACE: What do you hope people say about your service on the court?
BREYER: The best thing they could say, I thought I liked very much, is it has an appeal to me, was what Thurgood Marshall said. And they said, well, what do you want on your tombstone? And he said, he did his best. That’s it.
I’m there for everybody. I’m not just there for the Democrats. I’m not just there for the Republicans. And I’m not just there because a president was a Democrat who appointed me. It’s a very great privilege to be in that job.
And part of it is to remember that you’re there for everyone. They won’t like what you say half the time or more, but you’re still there for them. And that’s the privilege of the job in a way. You have to give your all. And you have to work as hard as you can.
So, you see, I think it’s important we have trust.
WALLACE: The name of the book is “The Authority of the Court and the Peril of Politics.”
Justice Breyer, thank you.
BREYER: Thank you very much, Chris. Thank you.
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