Is It Possible For Stephen Breyer To Retire From the Supreme Court a Second Time?
Once again, I am pleading with well-meaning liberals to stop taking the Federalist Society’s “embrace debate” shtick seriously.
Stephen Breyer, the retired Supreme Court justice whose deep faith in the apolitical rule of law is matched only by his certainty that his conservative colleagues share it, made a surprise appearance at this weekend’s Federalist Society convention in Washington, joining Justice Neil Gorsuch for an on-stage chat before a ballroom of attendees enjoying a black-tie dinner.
Their talking points, reports Adam Liptak at The New York Times, will be familiar to anyone who has followed the justices’ various hamfisted attempts to convince a public that does not like or trust the Court that it is nonetheless entitled to deference and respect. Although he acknowledged the legitimacy of criticizing particular opinions, Breyer emphasized that the Court, as an institution, “has to be independent” from “public opinion.” Gorsuch, for his part, praised Breyer for serving as a “fierce defender of our independent judiciary,” which feels like a polite way of thanking Breyer for carrying water for a conservative legal movement that depends for its success on people viewing a captured institution as principled and legitimate.
The congenial nature of this exchange contrasted sharply with one that took place a few hours earlier, at a panel titled “The Continued Independence of the Judiciary.” Fifth Circuit judge Edith Jones, an ultraconservative Reagan appointee, used her time to accuse fellow panelist and Georgetown Law professor Steve Vladeck of launching “unsavory” attacks on the judiciary, highlighting his scholarship criticizing rules that allow (mostly conservative) plaintiffs to hand-pick friendly judges in single-judge courtrooms. After Vladeck tried to defuse the tension by suggesting that they get a beer, Jones began reading off printouts that she’d brought of specific Vladeck tweets that she found offensive, which is how you know Jones is a serious, thoughtful person dedicated to the open exchange of ideas, and not a replacement-level right-wing crank who spent several hours battling the hotel printer that morning so that she could own some libs.
I have written before about the frustrating mistake that liberals make by participating in Federalist Society events, lending their names and reputations to an organization that depends on co-signs of respected outsiders to maintain some semblance of nonpartisan credibility. The Federalist Society all but explicitly acknowledges how essential this buy-in is to their work: After Jones’s ambush of Vladeck—which, by the way, earned hearty applause from the audience—Federalist Society executive Dean Reuter went out of his way to thank panelists with “divergent views” who nonetheless agreed to take part in the proceedings. This was both a cowardly half-apology to Vladeck, whom Reuter did not name, and also probably the most Reuter could say without risking another embarrassing Jones meltdown in public.
Again, although I do not think Vladeck and other liberal professors should be engaging with the Federalist Society like this, I understand why academic norms of collegiality and the organization’s just-a-debate-club rhetoric have combined, to date, to persuade many of them to show up when asked. But performances like Jones’s make clear that the cons of continuing to do so vastly outweigh the pros, to the extent that there were ever any in the first place. On Bluesky, Vladeck said that the experience had prompted him to reevaluate his stance on Federalist Society events going forward, and plans to write about it in the next few weeks.
One thing I do not understand is why, of all the people who get invited to stuff like this, Justice Stephen Breyer decided that this was worth his time. Do you know how easy it would be for Breyer, an 86-year-old Harvard Law School professor who teaches one two-hour course per week, to not make his way all the way to Washington, D.C. to yuk it up onstage with one of the guys who voted to overturn Roe? Literally any excuse would be fine! You are too busy, or possibly not busy enough! You don’t feel like going through security at the airport! You suspect you might be tired that day! The entree is beef, and you prefer chicken! Eagles-Commanders is on Thursday Night Football, and you want to watch Saquon Barkley put up 30 points for your fantasy team! Any one of these activities would have been better uses of Breyer’s time than voluntarily burnishing the bona fides of an organization working to undermine everything for which he ostensibly stands. If there is a volume of book sales it would take to persuade Breyer to enjoy his retirement and never do something like this again, I will do everything in my power to find a way to achieve it.
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Another "institutionalist" like Joe Biden, who reliably get played mercilessly by the opposition, and still don't get it...smh.