Do justices studiously try to avoid deciding cases on the basis of ideology?

At the outset of "The Authority of the Courts and the Peril of Politics," Justice Stephen Breyer explains he originally prepared his remarks for a presentation in France. Anyone who has ever tried to explain our institutions to citizens of a foreign country will understand our natural tendency to present those institutions in the most favorable light. In that respect, Breyer is no different from most of us. Following COVID and international travel restrictions, Breyer eventually delivered his remarks as the 2021 Scalia Lecture at Harvard Law School, explaining how the Supreme Court at its best should function.

Breyer's essay offers a civics lesson about the Supreme Court with suggestions for practices to preserve the court's standing in public opinion. Inside the court, he advises: just do the job, write clearly, listen to others in deliberation, apply a minimalist approach except in momentous cases. Outside the court, he advises us to be willing to accept decisions even if we believe them wrong. Breyer values the process whereby highly diverse groups work out their differences through law, rather than in more brutal ways. His voice is moderate, measured and tolerant of other views. His essay, sprinkled with references to Hamilton, Tocqueville, Cicero, Aristotle and Camus, displays his wide reading and intellect.

Breyer's essay is part of what some journalists have snarkily characterized as the Supreme Court's recent "charm offensive" -- an effort to educate and to convince the public justices are not politicians in robes. Breyer complains students are no longer taught civics in school. Shockingly, in 2016, only one in four adults could identify the three branches of the federal government.

Like Rodney Dangerfield, Breyer is troubled by a lack of respect. Lacking "power of purse and of sword," the Supreme Court -- that Least Dangerous Branch -- depends on the trust and respect of the people, without which decisions could become difficult to follow and enforce, leading to the decline and fall of the rule of law. In part, Breyer blames this lack of respect on bad press: Journalists unfairly label judges as Republican judges or Democratic judges. And in part, Breyer blames the lack of respect on the partisan process by which Justices are now chosen -- a political circus dividing us into partisan camps, stirring up anger and provoking our tribal tendencies.

Breyer bridles at labeling judges as Republican or Democratic judges. He points out many (nearly half) of the Supreme Court's decisions are unanimous. Whether nominated by Republican or Democratic presidents, all judges rely on the same basic interpretive tools: "They will consider the statute's text, its history, relevant legal tradition, precedents, the statute's purposes (or the values that underlie it), and the relevant consequences," though judges may weight the tools differently. Breyer notes some decisions in recent years have favored liberals, some have favored conservatives. "These inconsistencies," writes Breyer, "convince me that it is wrong to think of the Court as a political institution."

Furthermore, Supreme Court justices are not entirely predictable. President Dwight Eisenhower purportedly said he had made two mistakes, and they were both sitting on the Supreme Court. Breyer quotes a dyspeptic Theodore Roosevelt, who said of his appointee Oliver Wendell Holmes Jr., "I could carve a judge with more backbone out of a banana." While Breyer repeatedly insists there is a difference between political ideology and judicial philosophy, he does not spell out how this distinction aids our understanding of voting patterns among the justices. Perhaps he means justices do not vote a particular way to please a particular party, for that would be crassly political. But if a justice is likely to vote a particular way because the justice belongs to a particular party and has been carefully vetted for predictability and approved by that party, Breyer's distinction between judicial philosophy and political ideology will not matter much to those who care about decisional outcomes.

Breyer insists jurisprudential, rather than political considerations, account for most, if not all, judicial disagreements. "My colleagues think the same way. All studiously try to avoid deciding cases on the basis of ideology rather than law." How well do those assertions stand up in light of evidence, and counter-examples?

Regarding religion cases, Professors Lee Epstein and Eric Posner, "The Roberts Court and the Transformation of Constitutional Protections for Religion: A Statistical Portrait" (April 2021), found the Roberts Court ruled in favor of religious organizations more frequently than its predecessor, "over 81% of the time, compared to about 50% for all previous eras since 1953. In most of these cases, the winning religion was a mainstream Christian organization, whereas in the past pro-religion outcomes more frequently favored minority or marginal religious organization." Their explanation rests largely on the decision by Republican presidents to nominate "publicly pious lawyers who publicly express hostility toward the administrative state," thus satisfying the Republican business community and the evangelical base at the same time. This type of political analysis ties together the political vetting process and the predictability of judicial decisions. Only obliquely does Breyer address the effect of the political vetting process on the justices' voting patterns by suggesting voting patterns are not very predictable.

As to the political vetting process potential candidates must undergo, we could not find any reference in Breyer's essay to the Federalist Society and its process for vetting judges, though there are historical references to Hamilton's Federalist 78, Jefferson's opponents the Federalists, and John Adams, a Federalist. Readers who want to know how much the vetting process has influenced decisional outcomes will not find the answer in Breyer's essay.

Concerned about partisanship and the press eroding respect for the Supreme Court, Breyer has little to say about whether the substantive rulings of the Supreme Court erode respect. Breyer acknowledges that Supreme Court decisions reflect changes in the political world, but "only slowly," except in times of major realignment within the court. "But it is difficult to deny that the Court's overall approaches reflect to a degree the shift in political views of a majority of this nation's citizens." How true is that statement today?

In the 21st century a majority of new justices have been nominated by presidents elected by a minority of those who vote for president, given the quiddities of the electoral system. And new justices have been confirmed by a majority of senators who were not elected by a majority of this nation's citizens, given that states, whether large or small, are entitled to two senators. So one may question Breyer's assertion that the Supreme Court's overall approach will reflect a shift in political views of a majority of this nation's citizens today, even if we include Breyer's hedge phrase, "to a degree." Yes, the Supreme Court was not created to represent public opinion. However, a disconnect between the court's approach, as reflected in its decisions, and public opinion, may damage trust in and respect for the court.

Another factor should enter into this analysis of the relationship between the Supreme Court's overall approaches and the views of the citizenry: The Supreme Court must decide cases involving state efforts to change voting law and procedures. However, Breyer's essay did not reference gerrymandering, voter suppression, or Shelby County v. Holder, the case gutting the Section 2 pre-clearance provision of the Voting Rights Act. A feedback loop whereby presidents and senators, elected by a minority of the nation's voters, nominate and confirm Supreme Court justices, who in turn decide voting rights cases, does not assure the court's overall approaches will reflect (to a degree) the shift in political views of the majority. There is instead the unsettling possibility that the court's overall approach -- reflecting how the justices have been vetted, nominated, and confirmed -- will become increasingly predictable. Certainly this was Sen. Mitch McConnell's aim when he snuffed the nomination of Merrick Garland, which lasted 293 days, and later hustled through the nomination of Amy Coney Barrett, who has served since Oct. 27, 2020. It is, of course, to be expected that result-oriented politicians hold a less high-minded view of the Supreme Court than does Breyer.

In 2021, Breyer separately dissented in Whole Woman's Health v. Jackson, the emergency docket case involving Texas's anti-abortion law providing a $10,000 bounty to any person successfully suing persons assisting an abortion of a fetus after six weeks, a time much earlier than viability, and thus involving an anti-abortion law flouting Roe v. Wade. Breyer also joined Justice Sonia Sotomayor's dissent, in which she wrote, "The Court should not be so content to ignore its constitutional obligations to protect not only the rights of women, but also the sanctity of its precedents and of the rule of law." All three judges on the left wing of the Supreme Court dissented, joined by Chief Justice John Roberts, the so-called institutionalist. That case and its judicial line-up, implicating the political vetting of Supreme Court candidates chosen to undo Roe v. Wade, provide a challenge for Breyer and his argument that the justices really do studiously avoid making decisions based on ideology.

In contrast to Breyer's view of the Supreme Court, the legal journalist Dahlia Lithwick has described "the Trump Court and the Roberts Court." For the Roberts Court, it is business as usual, characterized by continuity and a high degree of agreement. Concurrently, there is the Trump Court, handling hot-button issues, and splitting along lines benignly described as jurisprudential, and aligning with party affiliation. In the coming term, those hot-button issues will be found in Dobbs v. Jackson Women's Health Organization, giving the Supreme Court another opportunity to reconsider and possibly overrule Roe v Wade, New York State Rifle & Pistol Association Inc. v. Bruen, concerning regulation of concealed gun carry, and Carson v. Makin, concerning Maine's probation on applying state funds to secondary schools that also provide religious instruction. Those cases and others will provide an opportunity to test Breyer's opinion that party affiliation is of relative unimportance, that he and his colleagues studiously avoid deciding cases on the basis of ideology, and that, in Breyer's words, "[j]udicial philosophy is not a code word for politics."

In the end, declares Breyer: "I am an optimist."