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What Justice Breyer Told Me –” I don’t think George Washington knew about the internet.”

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Best-selling novelist and principled conservative activist of long-standing Brad Thor announced last week that he was abandoning his #NeverTrump position and would vote for Donald Trump in November.

I was flattered to have my columns on the impact of the presidential election on the United States Supreme Court cited by Brad as the source of the arguments that changed his assessment of the election. “Stunned” more than “flattered,” perhaps, because most articles by law professors are read by no one other than other law professors, so we are not used to having our legal arguments considered by non-professors. The world of legal academia has slipped into near-total irrelevance on the public policy debates of our day. The handful of law professors who matter in the the big debates these days are actually known more for their non-“academic” work than for their “scholarship” (if we can call trees falling in forests that no one hears “scholarship.”)

While flattered, though, I think it wasn’t the arguments found in my recent trio of columns on the election and SCOTUS (found here, here, and here) that turned Brad so much as did focused attention on his part on the very obvious consequences of a shift in the majority of the Court. Most conservatives have gotten so used to the idea of the Court having disappointed them over the past four decades that they simply don’t grasp how very much worse it could be –and indeed will certainly be if Secretary Clinton is making the nominations as President Clinton. These conservatives think the Court has failed them totally since Earl Warren’s days when in fact the Court has a pretty good though not perfect record of fidelity to the original design of the Constitution since Chief Justice Roberts replaced Chief Justice Rehnquist and Justice Alito replaced Justice O’Connor. Not perfect, but pretty good and certainly much, much better than it will be with a liberal majority. Because of their upset with a handful of high profile cases (and especially with the idiosyncratic jurisprudence of Justice Kennedy and the decisions of the Chief Justice on Obamacare) some conservatives grumble that it doesn’t matter who makes the appointments and that justices are unpredictable.

In fact, justices appointed by Democratic presidents are remarkably predictable, as would be Clinton appointees. They hang together. Almost always, and just plain always on the big ticket cases. There are no Democratic appointees similar in any way to Justices Harry Blackmun and David Souter, who though appointed by Republican president with expectations of fidelity to “originalism,” turned out to be very liberal, “living Constitution” enthusiasts. And while other Republican appointees have disappointed, they have also held many important lines, lines that will be erased if Clinton wins.

Don’t believe me. Believe Justice Stephen Breyer, nominated by President Bill Clinton in 1994 and a reliably liberal justice ever since, who shows no sign of slowing down or veering towards the center.

In September of 2011, Justice Breyer came to my radio studio in Orange County, California for one of the more memorable of the interviews I have conducted since flipping the “on” switch in 1990. The full transcript is here and because Justice Breyer is every bit the affable, witty and learned fellow he comes across as in his opinions, the interview was fascinating. It remains so. I recommend it in its entirety to everyone who doesn’t think it makes a difference who is appointing the justices (and hundreds of lower court judges) from 2017-2020.

The exchange with Justice Breyer I found most interesting came towards the end of the long conversation, as we were discussing my approach to teaching Constitutional Law, which I describe as “realism”:

HH: I always teach [my law students] as well, realism. And the realism that stands before me today is a Court that just, it is unpredictable, the Constitution is whatever five justices say. Five of them say Citizens United means that Austin should be overturned. Five of them say abortion should be legal in 50 states. Five of them say Bush, four of them say Gore, that it really is, the realist says, it’s whatever five justices of the Court say the Constitution is. How do you answer that [charge] to the people listening and believe it?

SB: Oh, I’m not a realist. I mean, I don’t think it just is politics. And I spend a lot of time trying to explain why it just can’t be politics. And there are different people who have different views, but the job of a judge there is to try to figure out the answer to this legal question. I mean, some people think the answers are all found in history. Justice Scalia says that’s originalism. And the motive of that is a good motive, because I think that they want to control the subjective influence of the judge. They think that what I do, for example, or by looking more to Congressional purposes, or trying to figure out what the values are underlying, say, the freedom of speech, underlying parts of the Constitution. They think it’s too subjective. I don’t think it’s too subjective. I think I write down my reasons, and I think people are free to criticize them, and you have. There’s nothing wrong with that. We’re used to criticism. And that’s fine. People certainly can criticize and pay attention to it in general. Of course they can criticize. But there are different approaches to these very grand problems, very different. And I think, for example, originalism doesn’t work very well. I think it’s pretty hard. I don’t think George Washington knew about the internet. I think our basic job there is to take the values in the Constitution, which don’t change. They’re virtually the same now as they were in the 18th Century. They’re the values of the enlightenment, and apply them to today’s world which changes every five minutes. I mean, yes, George Washington didn’t know the internet, nor did James Madison know about television, et cetera. And this world keeps changing.

HH: They knew liberty. That’s what they knew. They knew liberty.

SB: Correct.

HH: Let me give you my favorite approach to the Constitution.

SB: All right.

HH: It’s from the Massachusetts ratification convention, January 25th, 1788. Mr. Smith rises up and says “Mr. President, I am a plain man, and I get my living by the plow. I’m not used to speaking in public, but I beg your leave to say a few words to my brother plow joggers in this house.” And he goes on to say “When I saw this Constitution, I found that it was a cure for these disorders. It was just such a thing as wanted. I got a copy of it and read it over and over. I had been a member of the convention to form our own state constitution, and learnt something of the checks and balances of power, and I found them all there, and I did not go to any lawyer to ask his opinion. We have no lawyers in our town, and we do well enough without. I form my own opinion, and I’m pleased with this Constitution.” There is the democratic impulse. And I think that the courts are at war with it, not the Supreme Court always and exclusively, but courts across the United States issuing these thunderbolts on marriage, and on all sorts of different social hot button issues, when the people haven’t…they’re ahead of the people, Mr. Justice. Do you understand what the concern is from that point?

SB: I do understand the concern. And the difficulty is that for 80 years in the United States, we had a system of legal racial segregation.

HH: But that was after the 14th Amendment.

SB: So where…ah, yeah, yeah. Where was Mr. Smith at that moment? I mean, if he had read that Constitution, he would say that it forbids this racial segregation. But it wasn’t happening. And the reason that Hamilton and Madison and the others wanted the Court, courts in general, people have arguments, don’t they? And they need to have them decided. As far as the Supreme Court is concerned, they thought it would be important, even though they’re risking error, to have a group of people who are trained as lawyers, at least, and to try to keep the others in bounds. And you say oh, the others will stay in bounds naturally. What about those 80 years of racial segregation? Go look at those pictures of how black children in the South were educated. Look at those shacks. Look at the two drinking fountains. Look at the segregated transport. And it was long, hard effort by a lot of people, not just the courts, but the courts included, to try to bring the country into correspondence with the Constitution. And so it isn’t true, you see, to say they’re just sitting there causing trouble. What they’re doing, in fact, is trying to make those ideals, and the ideals aren’t totally liberty, the ideals are how to create a workable government that as a practical matter will ensure people both their freedom, and the right for them, themselves, through democracy and the ballot box, to decide what kind of country they want. That’s a very complicated effort. And that’s the effort of the Court, to assure that reality corresponds to the ideals that are written in the document. And I do want people to understand the difficulty of the task, to understand that we might be wrong, to understand the need for protection of unpopular people, among other things, and then to say I see. You see, I believe on hope that the more understanding that there is, the more support there will be for our Constitutional institutions, including the courts.

HH: But to earn that, when the 14th Amendment, as a member of the party of Lincoln, the Civil War is fought, and the 14th Amendment is passed, and it addresses racial, the evil of racial discrimination, and it amends the Constitution the way it needs to be amended. That is very different. The Court [came] in with that precedent and said [to the states violating the 14th Amendment that “[you] are not true to what this [Amendment, for which] 600,000 people were killed for in the Civil War, [was intended]. We are going to enforce the [decision] of the Civil War and the 14th Amendment.” Very different when there’s not a Constitutional amendment on something like, for example, whether or not the 14th Amendment extends to sexual orientation, or whether or not the 14th Amendment guarantees this or that. And so I think it kind of sidesteps the point, almost, to say racial, the Court’s greatest moment, Brown v. Board, does not give them a writ to go about and invent for themselves this 14th Amendment rationale. (Emphasis added.)

Read this a few times if you don’t get its import right away. It is a license to legislate from the Bench on any subject that, arguably, George Washington didn’t know about.
Justice Breyer is a very, very smart professor-turned-judge-and-then-justice. As are Justices Ginsburg, Kagan, and Sotomayor. Add a fifth reliable “living Constitution” enthusiast to the quartet already in place and before long many of the conservatives professing “we can’t predict” what will happen, or that it won’t be that bad, or that the prospect of Donald Trump in the White House is just too alarming, will be singing a very different tune.
But at that point will anyone listen to the critics of an inevitable jurisprudence who were silent or, worse, complicit in its arrival even when its consequences were obvious?
I understand and credit those #NeverTrump folk who state loudly and on the record that they know full well that the Court flips for a generation and longer with a Clinton win but that Donald Trump is too dangerous anyway. If they admit, and some have, that Supreme Court supervised gerrymandering, to cite just one example, is coming and with it the permanence of Democratic majorities in the House and the State legislatures, then they will have shown they have at least studied up and done the Constitutional math.
And where do I get such an idea from? More from my conversation with Justice Breyer:

HH: In terms of the regrets, you write in Making Our Democracy Work, very surprising, that one of your greatest regrets is the Pennsylvania reapportionment case. You wished it had come out the other way.

SB: Yeah, I did.

HH: …I was surprised by that. I was very surprised by that. What are the other ones?

SB: I know everyone wants to know that, and to be really honest, I just put in three because I didn’t think I should have one.

HH: (laughing) Okay, so what’s number one of the three?

SB: (laughing) And the number one, the reason that I was, it was a question of whether with extreme gerrymandering, extreme gerrymandering of Congressional districts, the Court could get into that and say this is a very unfair system. And I thought it was possible to figure out a workable system there. And the reason I put it high on the list is because, well, you’re involved in this all the time in the media, as everyone is. They’re worried about gerrymandering, because it produced too polarized a political system. And so it’s in the back of my mind, is would some kind of Court review have led more states to produce bipartisan commissions for redistricting purposes, and would that have produced less polarization. That was what was in the back of my mind.

HH: In terms of that, when we look back from the framing, we see that they had two Senators from Rhode Island, and two Senators for Virginia.

SB: Yes.

HH: So they were quite obviously comfortable with gerrymandered federal powers.

SB: Yes, that’s true.

HH: So if you guys had gone into that, wouldn’t you be there forever? I taught Baker V. Carr yesterday, so I always say I’m so glad the Court’s not in this thicket. You’d never get out.
SB: That’s possible, and that’s what the majority thought. And since you don’t really want me to go on all day on this subject, I can refer you to the dissent, which I found convincing, like I find many of my dissents convincing.

HH: (laughing)

SB: But the others did not, so you may well have a good point.

My point won’t matter once another liberal arrives to join the four. And neither will the objections of those who say in this election season that we cannot trust Donald Trump, or that the Court can change back, or that no one can predict what any particular appointee will do. Justice Breyer’s candid admission that his biggest regret is that the Court has yet to take over the drawing of Congressional and state legislative districts is right there in black-and-white. With Hillary Clinton in the White House, you can cross that regret off his list by 2019. It isn’t hard to predict what’s coming. Not with candid, honest liberals like Justice Breyer around and answering questions. Would that conservative critics of Donald Trump at least acknowledge that which is inevitable, and not just with regards to reapportionment but every issue that comes before the Court –which is, in fact, every issue.
A final, final thought on this enormous subject. Say Clinton does win in the fall, but loses in 2020 though not before the Court is lost and every single circuit court of appeals in the grip of a majority of liberal judges, and President Cotton, or President Ducey or President Haley (NB: I used alphabetical order) has to start filling vacancies on the federal bench and especially the Supreme Court. Why in the world would he or she credit the reliability and wisdom of a politician or a professor seeking a place or a promotion on that bench in 2021 and beyond who couldn’t see the legal nose on their legal face in 2016, or if they could, pretended otherwise or ignored the issue entirely?


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