Former Supreme Court justice Stephen Breyer: ‘Are you kidding? You’ll get more cases than ever!’

In some ways my lunch with former US Supreme Court justice Stephen Breyer begins before I even set foot in his chambers. As I approach the building, my taxi tails a dozen police officers on bicycles who take our same turn and head towards a group of protesters.

A woman wearing a shirt saying “I am a vagina voter” is holding a banner that reads “2nd class citizen”. A few steps away, an anti-abortion activist is standing on a small stage flanked by “Make abortion unthinkable” placards, her speech bellowed through speakers: “The people of Idaho wanted this law!”

It has become a familiar scene in this corner of Washington’s Capitol Hill neighbourhood, as the Supreme Court in recent years has handed down dramatic rulings that have reverberated through American life.

On the day of our lunch, the court is hearing oral arguments in the latest abortion case to reach the most powerful bench in the US after it overturned Roe vs Wade in 2022, the Supreme Court decision that had enshrined the constitutional right to the procedure for nearly 50 years. Today’s case turns on whether a near-total abortion ban in Idaho flouts federal law.

Entering the Supreme Court is like stepping into a dimension that operates outside the laws of time — all white marble and bronze gates. As one of Breyer’s assistants leads me to the lift, we catch a glimpse of the towering 19th-century bronze statue of chief justice John Marshall sitting at the heart of the building.

Breyer, 85, greets me in the hallway with a broad smile. Stepping into his chambers (which justices retain at court after retirement, though they move to different rooms), we are welcomed by the sound of a crackling fire, which is always lit, irrespective of the season. Over the years, others have been able to tell by the smell of burning wood if he is in court. Breyer’s preferred restaurant has shut down so I have instead ordered take-out from Le Bon Café, his go-to eatery nearby. Grilled chicken Caesar salad for Breyer, quiche du jour for me.

Wood-panelled walls lined with leather-bound books, a pile of logs by the fireplace and a plush leather couch give the chambers a cosy feel. A round table is set beautifully with a white tablecloth and dinnerware featuring the Supreme Court seal. Breyer asks me if I’d rather be warmer and sit by the fire, but I opt for the opposite end of the table. It’s a gloriously sunny spring day in Washington.

Before getting started, there is some confusion over my dish. The quiche was sold out, so the café offered a quinoa salad instead, which does not convince Breyer and his apologetic staff. It is replaced by another Caesar salad, minus the chicken. I get the feeling neither of us thinks the highlights of our lunch will be culinary.

We are meeting in turbulent times for the Supreme Court, which has come under fierce attack from Congress and the American public as well as the White House. In an unusual move, President Joe Biden earlier this year admonished the court during his State of the Union speech. “With all due respect justices, ‘women are not without . . . electoral or political power’,” he said, citing the opinion that reversed Roe. The court’s approval ratings plunged to roughly 40 per cent in the past few years, among the lowest on record, before a slight increase in recent weeks.

[The conservative majority thought they] would turn the abortion problem over to the states . . . and then we’d never come back here. Ha ha ha ha!

Critics accuse the court, split 6-3 between conservative and liberal justices, of being politicised — some of its most controversial decisions have been split down ideological lines. Reports on some justices’ undisclosed relationships with powerful figures have also thrown the court into an ethical crisis and sparked calls for reform.

Breyer, who retired in 2022 after 28 years on America’s highest court, is concerned that the court may be hurtling towards a “potentially harmful” paradigm shift in which it broadly adopts a “textualist” approach to interpreting the constitution. This philosophy is based on what the text would have meant to those who wrote it rather than the approach that Breyer implemented while on the bench, which takes into consideration its purposes, values and consequences as they relate to the present day. The late conservative justice Antonin Scalia — a “good friend” — is often credited with catalysing the court’s swing to textualism. He argued that the constitution was meant to set a standard and constrain society’s desires of the day — abandoning such standards would leave you “at sea”.

“The part that worries me about more literalism is I think it’s undoable,” Breyer says. We are “threatened” by an approach that “makes promises which won’t be kept”, including that it will lead to a “fair” process; that it ensures a “simple way of interpreting the constitution”; that it will help Congress as it writes laws; and that it will “stop judges from substituting their own view of what’s good for the law”.

They all “sound great”. But “I’ll tell you something about those promises. They’re hollow. They’re not going to happen. You think it’s so simple and easy,” he cautions. On mentioning the constitution, he pulls out a copy from his jacket’s inside pocket.

So concerned is he about this trend that Breyer has recently written a book — Reading the Constitution: Why I Chose Pragmatism, Not Textualism — in a bid to course-correct. He writes that the Supreme Court “needs public support”. This helped spur previous evolutions, he argues, including in the 1950s, when the court found racial segregation in schools unconstitutional. While there was fierce pushback in the South, momentum for social change was building and the public ultimately embraced the court’s decision.

But given that the shift Breyer is warning against is coinciding with the court’s languishing approval ratings, is this a recipe for disaster? “That is a rather key question, which I won’t have a good answer to,” Breyer says, in what won’t be his last cryptic reply.

He “of course” is not arguing for judges to always be driven by public opinion. “But suppose you never pay any attention to it. Will you undermine the tendency of people developed over hundreds of years . . . [to] follow cases or statutes that they think are really wrong, but they’ll follow pretty much most of the time?” he asks.

If the public feel the law is not helping them “as much as it might . . . you might then be less willing to follow it”, he says as he taps the constitution on the table.

“You don’t want to undermine that tendency,” Breyer warns. “Because if you undermine it, you don’t have a rule of law. And if you don’t have a rule of law, it’s very, very difficult for 320 million people — . . . every race, religion, point of view, all kinds of different ideas — [to] live together. That’s a miracle.”

Dobbs was a bad decision . . . Not a happy day

Breyer, who is fluent in French, cites Albert Camus’s La Peste, a novel broadly seen as an allegory of the Nazi occupation in 1940s France. The rule of law helps “us keep down . . . le bacille de la peste [plague germ] which is in every person,” he says.

There is a sense of urgency in Breyer’s warnings. But he hopes younger generations will adopt some of the principles on collaborative governing set by Senator Edward Kennedy when they worked together on the Senate Judiciary Committee in the 1970s (Breyer, one of the few justices who has served in all three branches of the federal government, was the committee’s chief counsel when Kennedy was appointed chair).

During our lunch, he sips coffee from a mug that lists “Senator Kennedy’s Life Lessons”, including “What is he saying?”, “Share the credit” and “Keep your word”. I ask Breyer if today’s America is listening enough. “No!” he says instantly.

The only moment Breyer loses composure is while discussing Dobbs vs Jackson Women’s Health Organization, the ruling that in June 2022 reversed Roe and sent shockwaves across American society. He is visibly upset, raising his eyebrows repeatedly, turning his head from side to side. His pauses are long, his silence clamorous.

In reversing Roe, the court in effect gave US states a green light to enact laws that can be as restrictive as they wish. But the protests outside are a stark reminder of the string of abortion cases that have since come back knocking on the court’s door.

The conservative majority thought they “would turn the abortion problem over to the states . . . and then we’d never come back here. Ha ha ha ha!” says Breyer, growing more animated. The dissent penned by the liberal wing cast doubt on this. “Are you kidding yourself?” he says of the conservative justices. “You’ll get more cases than ever! They’ll see that. They’re not blind.”

Breyer finishes his main and moves on to his fruit salad. I have barely eaten, as I’m furiously taking notes, but the strawberries, pineapple, melon and blueberries look delicious.

I ask him about the highly unusual leak in May 2022 of a draft of the majority opinion indicating that Roe would be reversed, which triggered a rare probe from the Supreme Court that has not found the person responsible.

What was his reaction? “Bad!” he exclaims, before a long pause. “It would freeze things,” he says in relation to discussions among justices. Did it? “Did you see the result?” The final opinion was near-identical to the leaked draft.

Breyer also has strong words for the premise of Roe’s reversal. He does not believe the conservative majority overturned the decision because Roe had not been decided using a textualist method. “If you’re going to over-rule cases on that basis, you better over-rule . . . almost every case and there won’t be any law left!” he says. “So you’re not going to sit there and tell me that’s the reason, no, no.”

The majority opinion argued that Roe was an “egregiously wrong” decision, at odds with the constitution. But according to Breyer, that “provides nothing other than the judges’ . . . own feelings as to whether a case is wrong enough to overturn, the very criticism that they [the textualists] make of others.”

“Judges can be honest or dishonest,” he adds. “And the more honest they are, the more they try to keep their own views of what is good away from [decision-making].”

Breyer stresses that justices remained polite during debates. But Dobbs was a “bad decision”, he says with what feels like anguish. The moment of the ruling “doesn’t need much explanation. Not a happy day.”

The atmosphere has grown solemn. And then a sudden, blaring buzzer jolts me off my seat. It signals the end of the court’s session for the day. But our chat is far from over.

Less than 24 hours after our lunch, the high court hears oral arguments in a case involving former president Donald Trump, who has claimed absolute immunity for acts taken while in the White House. The proceedings stem from a federal indictment that accuses him of seeking to overturn the 2020 presidential election. The court’s decision will weigh heavily on this year’s presidential election, when Trump will probably face Biden in a 2020 rematch. But it will also fundamentally impact the future of the presidency and the US government at large. Stakes have rarely been higher.

Part of me thought, ‘83 is pretty old’, and then part of me thought, ‘Hey, 83 is the new 31’

In his book, Breyer writes that “courts are not well suited to resolve political questions”. But he declines to comment on the ex-president. I ask if an opinion he wrote in a 1997 case about immunity from civil liability, in which he raised concerns around legal challenges interfering with presidential tasks, is relevant to Trump’s criminal case today. His response is once again cryptic: “My father used to say there is a big problem with arguments from analogy.” He does, however, mention that he has opposed taking up “very political” questions as a justice.

The court, which includes three Trump appointees, has already heard a separate case involving the ex-president. In March, it ruled in his favour by overturning a ruling from the state of Colorado that threw Trump off the ballot on the basis he engaged in insurrection in relation to the January 6 2021 attack on the US Capitol.

Breyer’s retirement came amid mounting pressure to step down in order for Biden to nominate a younger justice who would cement the court’s liberal wing in the face of a conservative supermajority, half of whom are not yet 60.

Since then, Breyer has said he is open to the idea of term limits. A “long term” of roughly 20 years “would have the same effect” as a lifetime appointment and could have saved him the “psychological difficulty” of making a call on retirement. “Part of me thought, ‘83 is pretty old.’ And then part of me thought, ‘Hey, 83 is the new 31,’” he jokes.

I am curious to know what he makes of the pressure building around justice Sonia Sotomayor, now the oldest member of the liberal wing. Calls for her retirement are symptomatic of Democrats’ anxiety around the odds of a Biden win in November and of holding on to the Senate, which is charged with confirming Supreme Court nominees.

Breyer has conceded that having a Democratic president and Senate may have influenced his timing. But he says of Sotomayor, who is 16 years his junior: “She is a spring chicken! And I am an autumn rooster.” We both laugh.

Before heading out, I am keen to ask Breyer about the high court’s first code of conduct, adopted after ProPublica, the investigative journalism site, last year reported that conservative justices Clarence Thomas and Samuel Alito had not disclosed gifts and luxury travel for years. The pair have denied wrongdoing.

Under US law, justices are required to disclose significant gifts, reimbursement for expenses such as travel, and other items. Justices including Breyer have taken hundreds of subsidised trips over the years, some of which have been paid for by private parties. But reports on Thomas’s and Alito’s undisclosed relationships with wealthy businessmen incensed critics, who argued that justices had faced virtually no oversight for decades.

The high court said the new code was a “codification of principles” it “long regarded as governing” its conduct. But detractors deem it toothless as it lacks an enforcement mechanism.

“I always had an ethics code, seven volumes for all the federal judges,” argues Breyer, who would consult his clerks or ethics specialists for “complicated” questions. “Every person in the United States, including all the judges, want judges to behave ethically,” he adds. So while there are debates around oversight, “in my experience here, people try to behave ethically”.

Breyer will soon head back to Cambridge, Massachusetts, where he is now based, as he has returned to teaching at Harvard Law School, his alma mater. But after our lunch he will be watching the Washington production of Shakespeare’s Macbeth starring Ralph Fiennes and Indira Varma, one of the hottest tickets in town.

He recalls his meeting with the production’s director Simon Godwin, who told him: “Macbeth is really about that part of every human being that thinks . . . he really deserves more, no matter how much he has.”

“That’s a very dangerous psychological state. But it’s in everyone,” Breyer says. “One weapon [against that] is the rule of law.”

Throughout our conversation, Breyer has refused to weigh in on the state of US politics. But a quip slips through as he describes his response to Godwin’s comments on human greed: “Well, I now see why you are particularly happy to put this on in the District of Columbia.”

Stefania Palma is the FT’s US legal and enforcement correspondent

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