The Court Loses Its Chief Pragmatist
Last spring, during an online civics class I teach at the National Constitution Center for high-school students, I asked Justice Stephen Breyer about the values of compromise, consensus, and intellectual humility that he has championed throughout his career, as a Senate staffer for Ted Kennedy, an appellate judge, and a Supreme Court justice.
“I saw Senator Kennedy do this all the time,” replied Breyer, who announced his retirement from the Supreme Court today. “He was a Democrat—Republicans disagreed with him strongly—but if you need that Republican support, you say, ‘What do you think? My friend, what do you think?’ Get them talking. Once they start talking, eventually they’ll say something you agree with.”
Breyer’s optimistic conclusion—“you can do pretty well by trying to get people together in a thousand different ways”—was criticized by some Democratic partisans, who also called him naive for opposing court packing, a position he asserted in a recent speech at Harvard Law School. In his Harvard lecture, since published as a book, Breyer argued that viewing judges as nothing more than “politicians in robes” would threaten the Court’s nonpartisan legitimacy. “Breyer needs to grapple with the possibility that Democrats increasingly perceive the Court as a partisan institution because it has become a partisan institution,” one critic wrote.
Breyer’s constitutional vision as a justice—his commitment to temperance, flexibility, compromise, and restraint—had mixed success at the Supreme Court in the term that ended last June. Although it issued some
