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The Authority of the Court and the Peril of Politics

Stephen Breyer

ISBN 9780674269361

Publication date: 09/14/2021

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A sitting justice reflects upon the authority of the Supreme Court—how that authority was gained and how measures to restructure the Court could undermine both the Court and the constitutional system of checks and balances that depends on it.

A growing chorus of officials and commentators argues that the Supreme Court has become too political. On this view the confirmation process is just an exercise in partisan agenda-setting, and the jurists are no more than “politicians in robes”—their ostensibly neutral judicial philosophies mere camouflage for conservative or liberal convictions.

Stephen Breyer, drawing upon his experience as a Supreme Court justice, sounds a cautionary note. Mindful of the Court’s history, he suggests that the judiciary’s hard-won authority could be marred by reforms premised on the assumption of ideological bias. Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity.

Breyer warns that political intervention could itself further erode public trust. Without the public’s trust, the Court would no longer be able to act as a check on the other branches of government or as a guarantor of the rule of law, risking serious harm to our constitutional system.

Praise

  • Breyer…has thought deeply about judicial power, the rule of law, and the role of the judiciary in the American polity…His voice is a powerful one, and the brevity of this book, together with its readability, should ensure its lasting influence…An important document on American civics.

    —Bryan A. Garner, Wall Street Journal

Author

  • Stephen Breyer was an Associate Justice of the Supreme Court of the United States from 1994 to 2022. He is now Byrne Professor of Administrative Law and Process at Harvard Law School.

Book Details

  • 128 pages
  • Harvard University Press

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