Justice Breyer and Ruling Class Solidarity

Power is its own ideology.

Last week, retired longtime liberal Supreme Court justice Stephen Breyer wrote a New York Times op-ed singing the praises of compromise and friendship with conservatives. Conservative Justice Antonin Scalia and liberal justice Ruth Bader Ginsburg attended opera together, he gushed. Conservatives and liberals played bridge with their spouses and even switched partners. There were “unwritten rules” about cordiality to keep everyone…well cordial.

Breyer, who served on the court for 28 years, says he never even once heard “a voice raised in anger in that conference.” He concludes by earnestly suggesting Supreme Court collegiality as a model for the nation. “What works for nine people with lifetime appointments won’t work for the entire nation, but listening to one another in search of a consensus might help.”

Breyer’s comments are part of a long tradition of justices assuring the public that the court is a friendly, professional body rather than a hive of partisanship and rancor. Like Breyer, the judges generally frame their message of amity and unity as a moral exemplar; Supreme Court judges can get along, so you can too!

The truth, though, is that the justices are not trying to elevate us. They’re trying to keep us in our place. Breyer’s op-ed is a defense of the court’s entrenched power, and of his own status and prerogatives. Even liberals, even those on the left, have an investment in the status quo when the status quo gives them status. And that investment is fundamentally reactionary, in that it values entrenched hierarchy over justice and equality.

Breyer loves the court that hates you

Many commenters have already responded to Breyer with a discussion of our current 6-3 majority conservative Supreme Court’s vicious, murderous Christofascist authoritarian policies. (See for example Stephen Robinson’s essay.) But just briefly, the conservative court has over the last decade or so, gutted voting rights, leading to mass disenfranchisement of Black voters; put a wrecking ball through gun control legislation, helping to spark a hideous wave of mass shootings; and repealed women’s right to bodily autonomy, leading to a reproductive health crisis.

There’s plenty of signs that even worse could be in the offing; the court may well allow states to ban birth control, and seems to be gearing up to destroy the NLRB in an effort to crush labor rights nationwide. This is all happening amid revelations that Justice Clarence Thomas (pointedly not mentioned in Breyer’s ode to amity) receives millions in gifts from right wing billionaire ghouls, and is generally and comically corrupt.

Breyer does not mention the corruption; he doesn’t mention the cruelty. He doesn’t point out that his colleague, Justice Neil Gorsuch, lied about the facts in a case to hand down his preferred pro Christian supremacy decision in a recent decision. Breyer’s been a passionate opponent of the death penalty throughout his career, but he didn’t use his New York Times op ed to excoriate his conservative colleagues for refusing to hear a death penalty case in which jurors literally admitted to racial bias. He sets that all aside as less important than playing bridge.

Breyer can’t express solidarity with us without losing prestige

It would be nice if Breyer had written an op-ed that said something like, “You know what? The Conservatives on the court are slavering authoritarian shitheads who dream of ruling as Christian heteropatriarchal tyrants over a culled and supine electorate. Their effort to subvert the law to their nightmare project of hate is transparently bad faith. We must resist them by every possible means, and we shouldn’t let misguided respect for institutions stop us.”

Writing that out, though, makes clear why Breyer would never say that. He got his New York Times op-ed because of respect for the Supreme Court as an institution; he’s spent the last 30 odd years being showered with speaking opportunities, honors, and deferential press because of respect for the Supreme Court as an institution. The Supreme Court made him one of the most respected people in his field and the country; it granted him immense power. His name will go down in history books because of the Supreme Court.

Supreme Court Justices have great personal incentives to legitimize and rationalize a system which strokes their egos and shores up their personal power and prestige. Breyer and Sam Alito disagree about whether the state should torture pregnant people and LGBT people; they disagree about whether the state should celebrate as many racist executions as possible. But they agree that Stephen Breyer and Sam Alito are the right people to make decisions about whether to torture pregnant people. And more, they agree that their right to make those decisions for everyone is more important than whether or not pregnant people are tortured.

That makes Breyer sound like a self-absorbed, callous monster. And yes, he’s kind of a self-absorbed, callous monster. The point, though, is that his self-absorption, and his callousness, isn’t (just) a personal failing. It’s the natural result of a structure of incentives which align powerful people with the institutions and the colleagues who enable and guarantee their power.

It’s a very rare Supreme Court justice who is going to question the legitimacy or the virtue of the Court. To do so would be to question their own righteousness, their own worth, and their own careers.

And if the court has obviously become a Christofascist tool? If your colleagues are getting paid off by right wing billionaires? Well, that means you just have to refuse to question the court harder. That’s why Breyer has rushed to the New York Times to talk about the soothing balms of opera and bridge. It’s why liberal justice Sonia Sotomayor has joined right wing radical Amy Coney Barrett on a civility tour designed to explain to the masses that dying of sepsis is fine as long as you do it in a bipartisan way.

Yes, that’s why the establishment sucks at fighting fascism

The forces at play here don’t just apply to the Supreme Court. Elites in power are in general indebted to the systems, the processes, and the colleagues who cosign and defend their power. Even if they hold left views, they have a personal and professional investment in established hierarchies. And that investment is basically reactionary, because it prioritizes what is over what is just.

Fascists take advantage of this reactionary bias. They have little real commitment to establishment norms (see Thomas’ cheerful corruption.) But they know that appealing to norms, bipartisanship, and the dignity of established institutions can paralyze opposition, since those with the power to oppose them love norms, bipartisanship and (especially) the dignity of established institutions.

That’s why you’ve got Merrick Garland dinking away two years before appointing a special prosecutor to investigate Trump, lest someone, somewhere cast aspersions on the office of the Attorney General (spoiler: they cast aspersions anyway.) It’s why you’ve got Breyer and Sotomayor devoting their time and reputations to propagandizing for an unpopular far right court whose decisions they almost uniformly oppose.

Part of the reason I like the idea of expanding the Supreme Court is because it would make it clear that the Court is a political body—and it would reduce the power and prestige of each individual justice. Until then, though, it’s worth taking a moment to mock Breyer, or Sotomayor, when they tell us they care more about buttering up their vicious right wing colleagues than they do about speaking for the vulnerable who their right wing colleagues want to torment. A world in which we revere Supreme Court justices less is a world in which, I think, we revere justice more.