This is an abridged version of an article reported and published by the Marshall Project, a nonprofit news organization covering the U.S. criminal justice system. Sign up for their newsletters, and follow them on Twitter, Instagram, and Facebook.

Until his retirement from the U.S. Supreme Court last year, Stephen Breyer spent 28 years hearing cases that profoundly shaped American life, including landmark decisions on LGBTQ rights, reproductive rights, and criminal justice.

Perhaps more than any of the other justices, Breyer was known as a pragmatist, guided by a belief that good government will outlast any one person or political fad. In his 2021 book, The Authority of the Court and the Peril of Politics, he argued that the court only has power when the public shares his faith in the importance of its role in our democracy.

The Marshall Project sat down with Breyer in his office at Harvard Law School earlier this year for a wide-ranging discussion about the death penalty, abortion, prisons, and how politics do (and do not) affect judges’ decision-making.

In his book, and in our conversation, Breyer laid out his argument that the Supreme Court’s power stems, in a way, from its powerlessness. Referring to writings by Alexander Hamilton, he said that Congress cannot have the last word on the Constitution because its members are elected. And elections are essentially popularity contests.

“The least popular person in this country has the same rights under this document as the most popular person,” Breyer said

The president can’t be the final authority on the Constitution because he is the commander in chief of the armed forces, and when a single person has so much power, it is too easy for ego to get in the way. “We don’t want the president to have the last word. He’ll say he’s always right,” Breyer said.

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So Congress has the power of the purse. The president has the power of the sword. “Judges? They’re not perfect,” Breyer argued. “But at least they don’t have that much power.”

Read on for an abridged transcript of our conversation, edited for length and clarity. To read the full interview, edited for length and clarity, visit the Marshall Project.

Can you walk me through—in your recent book, you argued that the court doesn’t have the power of the purse. It doesn’t have the power of the sword—

I didn’t say that, by the way. That was Alexander Hamilton.

Of course. But [you wrote that] all the court has is its legitimacy in the eyes of the people. At what point do you fear that they are undermining their own legitimacy?

Well, I’ve written in some opinions—or joined in the Dobbscase, and before, in Bush v. Gore—they shouldn’t have taken it. It’s going to be a self-inflicted wound.

But remember, people tend to think of the court, good or bad—and good usually means “We agree with the result,” and bad usually means “We don’t agree with the result.”

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And by the way, if you want politics, the appointment process is nothing but! The confirmation process, because of the people who are the political group, people will look for a judge who will have a way of deciding cases that theythink will lead to more decisions that they like politically. But the judge doesn’t think it’s political. The judge thinks that he’s deciding it the right way.

You make the argument that the Supreme Court has to not just beapolitical, but appearapolitical in order to maintain its legitimacy.

I’m not elected. My job is to do the best I can to get a correct, i.e., a legally correct, decision under the law. And law is not computer science. So in my view, not always, but I’m trying to do this properly under law, not under politics or not under what the majority think. That’s Congress, the majority. But if you do it correctly, law will sort of evolve in a fairer direction, because that is what law is about.

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The words “the freedom of speech”—they don’t explain themselves. [You as a judge have to interpret them.] Your background, who you are, you as a person—of course it affects the decision. In not all—and maybe not even many—but in a few cases. And that’s important. And I used to think, “What a pity. Not everyone agrees with me.” But hey, it’s a big country. And so it’s not surprising, with every view possible in this country, that there are different views in terms of people being raised differently, having different experiences. That was Thurgood Marshall! He brought to the court experience that others didn’t have. Very valuable.

There are changes over time, which are very important.

And will we see change again?

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It sounds like you’re saying that it’s all part of a natural kind of—maybe pendulum is the wrong metaphor, but—a natural progression. That the court is going to move to the left, it’s going to move to the right.

And we don’t know. You know who else, in my opinion, doesn’t know? The judges who are there. Because it takes three, four, five years before you get used to that place. [Former Supreme Court Justice] Harry Blackmun told me when I first was appointed, “It’s an unusual assignment.” And it sure is. It’s a very unusual institution. And it’s very hard to sum it up. And of course, it’s not like the Court of Appeals, which is not like the District Court. And law is not computer science.

How is the Supreme Court different?

It’s part of one of the major institutions that Americans have under the Constitution to govern themselves. And you say, “Well, then why don’t they do what’s popular?” Why? Because this document, it’s written for everybody. The least popular person in this country has the same rights under this document as the most popular person. And if you let Congress on its own—maybe they should have the last word! They do in many countries, the parliamentarians. But believe me, they are experts on popularity. And so Hamilton writes, he says that’s the reason they don’t have the power of the purse or the sword: We don’t want the president to have the last word. He’ll say he’s always right. He might not, but he might. And Congress? Popularity! Judges, well, they’re not perfect, but at least they don’t have thatmuch power. And they don’t, really, because you can get a few cases that are pretty awful. But it’s different, the power is different.

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But [with] the 6–3 makeup right now, the six can just make decisions without having to compromise with anyone.

No, they can’t. Because they’re judges. They’re lawyers. That’s what Learned Hand said. “Who controls you?” Someone asked him.

[Pointing at his bookshelves.] Those books.

Really. Please. If you are not interested in law, if you are not interested in trying to get this right, if you are not interested in trying to do a betterdecision rather than a worse decision, there are a lot of other good jobs that pay a lot more, so please don’t do it. Why would you do it?

And you say, “Oh, because we become so important.” That lasts about a year. President Bill Clinton, I think, was talking about himself. I heard him say at some point to a judge, “You better like the job. The applause dies away after a year or so, and then you’re left with the job. So you’d better like it.”

And the enemy there in the court? It’s easy to say. It’s one word: ego. That’s the enemy in human life. And you never get rid of it, but you try. And so the job is a fabulous job because you have to do your best in every case. You have to give what you have. And you understand that after about a year or two, and you do it. There is no payoff. There is no payoff to thinking you’re a clique. You do have different views of some cases because of the way you approach the problem. And I will spend a lot of time trying to say to other people, “I want to see how you approach it.” And I’m honest about that. And this is why I don’t necessarily accept that. And that’s what you’re writing in a dissent. And sometimes you get them to move. And when you’re sitting around that table, you listen to what people say.

Even in the current Supreme Court?

Of course! My God! That’s not phony! It’s true!

Nobody believes me. But it’s true.

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You think I like Dobbs? There were a few words in that dissent I don’t normally use, or join. But no, I thought that was wrong. And I wrote my reasons.

But you’re saying that doesn’t change all the other things [that give the court staying power].

You can’t change an institution that’s been around for 100 to 200 years. You can over time. And there have been some terrible days. What do you think about Dred Scott? What about Plessy v. Ferguson? There have been a lot of bad, bad, bad days. What about Korematsu? Even the good ones. I wrote in a different book, you’re certainly free to read, about Cooper v. Aaron. Little Rock. The Little Rock Nine. And sending in the troops. And Cooper v. Aaron, the court said after, you have to keep integrating. Do it. All nine signed it. You know what? The governor told the city: Close the schools.

And they couldn’t last. It couldn’t last. Because the country had awakened to the problem. And we have Martin Luther King, and we have Rosa Parks, and we have the Freedom Riders.

No one knows exactly what will work and what will not. Of course, when there have been major changes, the public is generally going along, but not all the public. Remember the “Impeach Earl Warren” signs? They were all over the South! What do you think? You think every decision has been popular?

It’s far too soon. Far too soon. This is an important institution, and the people who are there know, as I knew. And it takes time. And they’ve only been there a short time. You begin to learn the mores, and you begin to see you have a bigger job than just getting what you happen to think is the nicest thing at the moment.

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It seems, from reading some of your writings about the death penalty pre-Glossip, you were never its biggest fan. But it wasn’t until Glossipthat you came out so forcefully and said, “It is unconstitutional.”

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I didn’t say that. I said we should reconsider[whether it was constitutional].

Thurgood Marshall made a point to vote to grant every stay of execution. Or, in cases where the stay was not granted, to dissent, every time.

I didn’t.

Can you talk about why?

Because I said when I wrote Glossip, “I think we should take it.” If I lose, I lose. And I’m going to go back to following what the law is, in the absence of your taking my wise advice and reconsidering. And I did, pretty much.

Every so often I would write something to remind people of Glossip. And I would say, this person has been on death row for 35 years. Is that going to make a difference to general deterrence? To specific deterrence? To reforming his character? Or even to vengeance, if you want to call it that, or retribution? I don’t think so. I would write something and say, “What is going on? It’s very expensive. What’s happening here? And look at this case.” So I do that occasionally because I don’t want people to forget. The legislatures, too. They can read very well.

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Jurisprudence
Supreme Court
Stephen Breyer

Former Supreme Court Justice Stephen Breyer says judges "don't have that much power."

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