Retired Supreme Court Justice Stephen Breyer on Sunday said politics do not play a role in the high court’s decisions, while noting that public opinion “rarely” sways justices.
In an interview with ABC’s “This Week,” Breyer was asked to assess whether the current makeup of the court reflects the bitter divisions in the U.S. political system.
“Hard to say. It’s a different. It’s a very complex institution,” Breyer said. “I’ve not seen politics in the court. And I’ve been a judge for 40 years.”
Breyer explained that during his time as chief counsel for then-Senate Judiciary Chair Ted Kennedy he saw political calculations informing decisions on an everyday basis, adding that wasn’t the case on the court.
“No, that isn’t there,” he said. “That just isn’t there.”
Breyer also weighed in on whether justices allow public opinion to sway them when deliberating a controversial case.
“Well I can never say never, but rarely,” Breyer replied.
He then went on to cite a quote by the late Paul Freund, a professor of constitutional law: “No judge should or will be moved by the temperature of the day, but every judge will be aware of the climate of the season.”
Still, Breyer said justices spend time thinking about how their decisions will be received by the American public.
“You are making decisions that will affect people,” Breyer said. “Of course, knowing that a lot of people are going to read a case leads me to write, if it’s my opinion to write, use certain language that is easy to understand and spend a lot of time trying to explain why.”
He continued: “There aren’t easy answers.’”
Breyer firmly rejected the idea that justices would engage in horse-trading when ABC’s Jonathan Karl said the court could potentially send a message by presenting two unanimous decisions in the two cases involving Trump and the 2024 election.
The court already unanimously overruled a Colorado court’s decision barring Trump from appearing on the 2024 presidential ballot. If the judges presented another unanimous decision rejecting Trump’s presidential immunity argument in the case they are set to hear arguments in later this week, that could send a message to the American public by presenting two decisions “that can’t be broken down into straight political lines,” Karl suggested.
Late Justice “Sandra O’Connor used to say this: The first unwritten rule is nobody speaks twice till everyone speaks once. Second unwritten rule, tomorrow is another day. You and I were the greatest of allies on case one. Case two, we’re absolutely at loggerheads,” Breyer said.
In another part of the interview, Breyer called into question part of Justice Samuel Alito’s majority opinion in Dobbs, the case that led to the reversal of Roe v. Wade, where the conservative justice wrote: “We do not pretend to know how our political system or society will respond to today’s decision, overruling Roe and Casey. And even if we could foresee what will happen, we will have no authority to let that knowledge influence our decision.”
Breyer said justices have always looked at factors such as how Congress could react to a potential decision as well as the consequences their ruling could bring about.
“Judges have always done that kind of thing, and it is part of the role of interpreting a statute or the Constitution,” Breyer added.
