Retired Supreme Court Justice Stephen Breyer has warned colleagues not to “write too rigidly” in their opinions, saying such decisions can “bite you in the back” in an ever-changing world.
In an extensive interview with CNN’s Chris Wallace on “Who’s Talking to Chris Wallace,” which premiered Friday on HBOMax and aired Sunday night on CNN, Breyer also bemoaned his standing in the minority liberal bloc on court during his final year on the bench. , addressed the reversal of the court case of Roe v. Wade and spoke of the ongoing controversy regarding Jenny Thomas, wife of Judge Clarence Thomas.
Breyer said it was a “very frustrating” place to be as he found himself in dissent on a number of issues of historical importance as he said the majority side (the Conservatives – though the retired judge wouldn’t use that description) was unwilling to bend.
“You start writing very sternly and you’ll see the world will come and bite you in the back,” Breyer said in his first televised interview since leaving the platform earlier this year. “Because you’ll find something you see that doesn’t work at all. And the Supreme Court, somewhat unlike others, has this kind of problem in spades.”
“Life is complicated, and life is changing,” Breyer added. “And we want to preserve as much as possible – everyone does – some basic moral political values: democracy, human rights, equality, rule of law, etc. to try to do that in an ever-changing world. If you think you can do it by writing 16 A computer program – I just don’t agree.”
Breyer’s comments come days before the Supreme Court begins its first term without him in nearly 30 years. In the new semester, judges will consider issues including voting rights, immigration, affirmative action, environmental regulations and religious freedom — areas where a strong conservative majority can easily control outcomes.
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During his last tenure on the court, Breyer was often in the minority in some of the cases that grabbed the court’s headlines, including issues related to abortion, gun rights and the environment. He told Wallace that being in the minority in those cases was “extremely frustrating,” but said he took the losses away.
Breyer took his view on the controversial June court decision to dismiss Roe v. Wade, and his sentimentality visibly grew as he debated the historic abortion rights issue.
And you’re saying do I like Dobbs’ decision? Of course I didn’t. The retired judge said, his voice rising.
“Was I happy about that? Not for a moment. Did I do everything I could to convince people? Of course of course. But here we are and now we continue. We try to work together.”
Breyer also condemned the leak earlier this year of a draft opinion on the decision to overturn Roe’s ruling, saying the unprecedented breach of court protocol “was extremely devastating.”
“Has there been an earthquake inside the court?” asked Wallace.
“earthquake?” Briar replied. “It was so devastating because that kind of thing doesn’t happen. It doesn’t happen. And here we are.”
Other justices have also criticized the leak – including Justice Elena Kagan, who called it “appalling” earlier this month – and the worsening of Supreme Court public opinion after it happened.
Chief Justice John Roberts ordered an internal investigation into the leak shortly after it occurred, and Kagan recently said she expects judges to have an update on the status of the investigation by the end of September.
During his interview, Breyer was careful not to get caught up in the drama surrounding the political activism of Jenny Thomas, whose support for efforts to reverse the electoral defeat of former President Donald Trump has come under scrutiny due to her husband’s involvement in a case before the Supreme Court over the January 6 House inquiry.
When asked if Jenny Thomas’s political activism is detrimental to the prestige of the court, Breyer replied: “I don’t think so because I firmly believe that women wives, including wives of Supreme Court justices, should make decisions about how to live their lives, their careers, and what kind of profession, etc., for themselves.”
He added, “I will not criticize Jenny Thomas, whom I love. I will not criticize Clarence, whom I love. And here we are.”
Reflecting on his nearly three decades on the Supreme Court, Breyer insisted on the idea that relations between conservative and liberal justices had worsened as he approached retirement, acknowledging that “at times” there seemed to be two separate camps on the bench.
“Less than you think. Less than you think… but I can never say.
Breyer said the court, long famous for its colleagues, has recently changed some of it, using the “nice” conversations that usually occur between judges at lunch after their deliberations on a case as an example of the shift.
“Maybe a little less funny,” he said, “but I don’t mean—I didn’t hear people in that conference room yelling at each other angrily.”
“What you do is what I learned from (Judge) Arthur Goldberg when I was a law clerk, and I tried to live up to that. And I also learned that from Senator (Ted) Kennedy, when I was working with him,” Breyer said. “You do what you can, you know, and people may agree. And maybe they don’t. And maybe you will win. And maybe you will lose. And then what you do is think about it for a while.”
“Go on to the next thing, so you can do a decent job on the next thing,” he added. “Keep it up.”
Breyer, who announced his retirement plans amid pressure from liberals who wanted him out of court while Democrats controlled the Senate and President Joe Biden in office, said he decided to leave now because he worried that Republicans would take control of the room, he might be. He was forced to remain on the bench for years while the Republican Party blocked the presidential candidate.
“There were delays, you know, when the party split between control of the Senate and control of the presidency,” Breyer said. “And sometimes, long times go by and I’d rather my retirement, my membership in the court, not be involved in what I call those purely political issues.”