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At the new legal realist website Balls And Strikes, Jay Willis has a good review of the pretext for Stephen Breyer’s Unconvincing Rationalization and Profit-Taking Tour:
At 101 pages, including an author’s note, a preface, and the acknowledgements, The Authority of the Court and the Peril of Politics is the jurisprudential equivalent of a book report written by a middle schooler whose primary concern was hitting the page count. Physically, it is tiny: At eight inches from corner to diagonal corner, The Authority of the Court and the Peril of Politics is roughly the size of the largest iPhone available for purchase. Holding this Tuesdays With Judge Morrie-ass pamphlet in your hands makes you feel like a giant reading a human-sized book authored by an 83-year-old man who has evidently absorbed no new information about the politics of judicial appointments since the Nixon administration. At a list price of $19.95, it is, on a page-for-page basis, the most expensive piece of literature this side of The Very Hungry Caterpillar. If this book review goes on too long, it will approach the length of the book itself.
This is probably better referred to as a “nest egg” than a “book.” (The most logically appropriate thing would be for Breyer’s heirs to blow it all on TWENTY-TWO! In related news, Breyer’s assertion that he’s not planning to die and so implicitly cannot be held responsible if he does reminds me of nothing so much as David Howard’s argument that the casino should draw a careful distinction between the fine people who just dropped out of society and all the schmucks who just came to see Wayne Newton.)
Of course, the thinness of the nest egg is what the core argument deserves:
The section that prompted the most anguished temple-rubbing is Breyer’s proffered solution to the dangers posed by perceptions of a “political” Court: He closes by—I am not making this up—offering three steps people can take to help “maintain the public’s confidence in the Court and the law’s authority.” They are, in order, better civics education, more civic engagement and participation, and “practicing the skills of cooperation and compromise in order to learn them and to keep them.” If you are confused as to how a robust social studies curriculum, better library volunteer programs, and regularly-scheduled civilized debates in the town square would address the immediate, tangible threats posed by a 6-3 conservative supermajority that doesn’t believe in your right to vote, congratulations, you have diagnosed the problem better than the one man who needs to understand it most.
Whatever and whenever Breyer decides about retirement, maybe the most alarming revelation of The Authority of the Court and the Peril of Politics is the hint of how bad things could get in the meantime. On the eve of a term in which the conservatives may have the numbers to, among other things, get rid of Roe v. Wade for good, the nominal leader of the three-justice liberal wing has published a self-indulgent manifesto that preemptively excuses the Court’s most dangerous handiwork as the product of a system he insists isn’t broken.
What’s remarkable is that Breyer thinks that a Court that is a powerful superlegislature representing the faction that has lost the popular vote in 7 of the last 8 presidential elections having a high level of legitimacy is something liberals should not only want but actively work to maintain. At no point does he seem to consider that perhaps it the Court itself that is responsible for its status.
In a democracy, normative legitimacy must be earned, not granted as a feudal title. Liberals are about to widely perceive the Court as currently constituted as democratically illegitimate because it is. And nobody should care that this makes Stephen Breyer feel like his life was a lie, especially as Clinton’s nominees to the Court have played a major role in how we got to this place.