Stephen Breyer warns justices that some opinions could ‘bite you in the back’ in exclusive interview with CNN’s Chris Wallace
Breyer said it was a “very frustrating” spot to be in as he found himself in dissent in a number of historically consequential cases where he said the majority side (conservatives — although the retired justice did not use that description) was unwilling to bend.
“Life is complex, life changes,” Breyer added. “And we want to maintain insofar as we can — everybody does — certain key moral political values: democracy, human rights, equality, rule of law, etc. To try to do that in an ever-changing world. If you think you can do that by writing 16 computer programs — I just disagree.”
The comments from Breyer come days before the Supreme Court begins its first term without him in nearly 30 years. In the new term, the justices will consider issues including voting rights, immigration, affirmative action, environmental regulations and religious liberty — areas where the solid conservative majority can easily control the outcomes.
During his final term on the bench, Breyer frequently was in the minority in some of the court’s most headline-grabbing cases, including ones concerning abortion, gun rights and the environment. He told Wallace that being in the minority in those cases was “very frustrating,” but said that he took the losses in stride.
Dobbs decision: ‘Was I happy about it? Not for an instant’
“And you say did I like this Dobbs decision? Of course I didn’t. Of course I didn’t,” the retired justice said, his voice rising.
“Was I happy about it? Not for an instant. Did I do everything I could to persuade people? Of course, of course. But there we are and now we go on. We try to work together.”
Breyer also condemned the leak earlier this year of the draft opinion of the decision overturning Roe, saying the unprecedented breach of court protocol “was very damaging.”
“Was there an earthquake inside the court?” Wallace asked.
“An earthquake?” Breyer responded. “It was very damaging because that kind of thing just doesn’t happen. It just doesn’t happen. And there we are.”
Chief Justice John Roberts ordered an internal investigation of the leak shortly after it occurred, and Kagan said recently that she expects justices to be given a status update on the probe by the end of September.
Ginni Thomas controversy
Asked if he thought Ginni Thomas’ political activity was damaging to the standing of the court, Breyer replied: “I don’t go through that in that I strongly believe that women who are wives, including wives of Supreme Court justices, have to make the decisions about how to lead their lives, careers, what kind of career, etc., for themselves.”
He added: “I’m not going to criticize Ginni Thomas, whom I like. I’m not going to criticize Clarence, whom I like. And there we are.”
Court collegiality and retirement
Reflecting on his nearly three decades on the Supreme Court, Breyer tiptoed around the idea that relations between conservative and liberal justices have worsened as he neared retirement, conceding that “sometimes” it did seem like there were two separate camps on the bench.
“Less than you think. Less than you think … but I can’t say never,” he said.
“Maybe a little less jolly, but not I mean — I have not heard people in that conference room scream at each other in anger,” he said.
“What you do is what I learned from (Justice) Arthur Goldberg when I was his law clerk, and I’ve tried to live up to it. And I learned it as well from Sen. (Ted) Kennedy, when I worked for him,” Breyer said. “You do your best, you know, and maybe people will agree. And maybe they don’t. And maybe you’ll win. And maybe you’ll lose. And then what you do is you think about it for a while.”
“Go on to the next thing, so that you can do a decent job on the next thing,” he added. “And just keep going.”
Breyer, who announced his retirement plans amid pressure from liberals who wanted him to exit the court while Democrats controlled the Senate and President Joe Biden was in office, said he decided to leave now because he worried if Republicans took over the chamber, he might be forced to stay on the bench for years while the GOP blocked the President’s nominee.
“There have been delays, you know, when the party is split between control of the Senate and control of the presidency,” Breyer said. “And sometimes, long times pass and I would prefer that my own retirement, my own membership on the court, not get involved in what I call those purely political issues.”
CNN’s Ariane de Vogue and Zachary Cohen contributed to this report.