Justice Breyer’s Legacy-Defining Decision

In April, United States Supreme Court Justice Stephen Breyer delivered a lecture at Harvard Law School with the less-than-scintillating title “The Authority of the Court and the Peril of Politics.” He argued strongly—and, at least in my view, unconvincingly—that Supreme Court justices are above politics. Breyer insisted that “jurisprudential differences,” not political ones, “account for most, perhaps almost all, of judicial disagreements.” As he sees it, the justices are essentially technocrats who methodically use their preferred legal tools to decide how cases should come out.

This idea is a fairy tale America likes to tell itself. If this story were true—if justices were mere technocrats—presidents filling a Court vacancy would appoint the best legal scholars and judges without considering their politics. What presidents of both parties actually do, as George W. Bush did when choosing Samuel Alito and as Barack Obama did when selecting Sonia Sotomayor, is draw up lists of candidates vetted