Notes From Away: Man in the Middle

By Tom Lamia

Supreme Court Justice Stephen Breyer was my classmate at Harvard Law School. Steve was also my model for brilliance without pretense. No one in that Kennedy era circle of the ambitious and talented seemed more able, or better directed toward making a mark on the world. For a few weeks in the summer of 1963, Steve was a housemate of mine at Lincoln’s Inn, an eating club on the law school campus that had on its upper floor a few resident rooms for law students. The Inn was on the other side of Massachusetts Avenue from Gannett House, where the Harvard Law Review is edited and published by its student members, who select, write and edit the notes and articles that appear in its eight issues published monthly from November to June. To get the job done the student editors arrive in mid-summer.

I was living at the Inn that August because I had returned to campus early to work with a professor compiling a survey of state property laws. Steve was then a rising third year student and the articles editor of the Law Review. With sole responsibility for the content of what was (and is still) the country’s pre-eminent legal periodical, the Review editors had no time to waste. Their Sisyphean efforts on the Review would not end until June when the last issue was out the door. When I saw Steve it was only in passing. He and the few other Review members then quartered at Lincoln’s Inn were at Gannett House from daylight to past midnight each day, wholly engaged in their reading, writing and editing tasks.

However, on one occasion, I found myself included in a conversation between Steve and a visiting uncle in a sitting room at the Inn that is even now memorable. I will have more on that in a moment.

Steve grew up in San Francisco, went to Lowell High School and to Stanford. He was a Californian and proud of it.

Early in his time at Harvard, Steve engaged a visiting California congressman, John Rousselot, a John Birch Society member, in an impromptu debate in a dining hall where the congressman was speaking to students. From the audience, Steve asked Congressman Rousselot a question that immediately led to an entertaining and thoughtful back and forth on political philosophy that went on long enough that I, who was only having lunch and not there for the Rousselot event, was drawn to the discussion. I was not alone. Soon the room was full of law students, grad students and faculty. This was a first year law student quietly but authoritatively pinning to a verbal wall a paragon of the extreme right wing of the Republican Party. After that everyone knew who Steve Breyer was.

The after dinner conversation between Steve and his uncle (a philosophy professor as I now recall) took place two years later. It was no less impressive, although different in tone and content. This was a thoughtful, purposeful, respectful, sincere and thorough conversation, on both sides, searching and serious. A literal passing of the torch of wisdom between generations.

Now Steve Breyer, Supreme Court Justice, is in the middle of an uncomfortable public discussion not of his making. In this discussion, well-intentioned Democrats are suggesting that Justice Breyer tender his resignation so that this Democratic President can nominate a younger successor. Idiocy, I say and here’s why.

First, finding a candidate of Breyer’s quality and abilities, notably those coming from his long service as a Supreme Court justice (27 years), federal circuit court judge (14 years), Harvard Law and Kennedy School professor, overlapping with high level U.S. Government positions, including Chief Counsel to the Senate Judiciary Committee (14 years) would be difficult and could raise internal divisions among Democrats.

Second, Steve Breyer is omnivorous in his interests and depth of learning. He has a robust interest in architecture, literature, history and family life. He is practical, well liked among the justices and a dedicated institutionalist. His most recent book, The Authority of the Court and the Peril of Politics (Harvard University Press, 2021), is a blueprint for saving the Court and our democracy and is eminently readable.

Third, intervening events would almost certainly defeat the purpose. Would a future justice chosen for ideological or political purity remain so? Would any such justice be as protective of the Court’s reputation for fairness and justice? Would any such nominee be confirmed? Would any such justice be effective in bridging jurisprudential differences, or political differences? Justice Breyer is non-political and non-partisan, but not unaware or unskilled in such matters.

Fourth, Justice Breyer’s influence on the Court is exceptional. His Solomonic presence, capacity for humor and broad intellectual heft give him credibility among the justices and assures that a full accounting of principles, consequences and outcomes is applied in every case.

The greatest danger to our democracy is not from a possible political or jurisprudential rigidity in any individual justice, but from a loss of respect for and acceptance of the Court as an institution. The Court lacks the power of the “sword or the purse,” as Hamilton wrote. For its decisions to be accepted by the people, the Court must have the confidence of the other branches of government and of the people. It is no small thing to fuss with the structure of the Court. The people will not like it if that impression is given. Ask FDR. Enough fodder for doubt has already been given by Republican maneuverings under Trump and McConnell.

There has been a substantial erosion of confidence in the federal government over the past sixty years—trust “all or most of the time” has fallen from 73% in 1958 to 19% in 2019, according to Pew Research. Yet, Pew has also found that a “favorable view” of the Court continued at much the same level from 1985 (64%) to 2019 (62%). So far, so good; but how shaky is that public acceptance in light of this continuing drop in trust of the government as a whole? Perceived efforts to manipulate Court membership to achieve political purposes would further endanger a Court already suffering from a perceived abuse of power in the nomination and confirmation process.

Steve Breyer and I are the same age. I had dinner with him a year ago at our law school reunion. I also was present for a speech he delivered on that occasion. I am fully confident of his continuing physical and intellectual vigor. He will know when it is time to retire. Until then, let us all take comfort in his presence on the Court and in his ability to bend its deliberations toward Justice.