At the start of each sitting of the U.S. Supreme Court, the participants and gallery hear this prayer: “God save the United States and this Honorable Court!” With court-packing in the air, one may ask: Does God think the Supreme Court is worth saving?
God’s opinion remains beyond reach, so we’ll fall back on the authority of Justices Amy Coney Barrett and Stephen Breyer, who both have worried aloud lately that the Supreme Court’s status may be falling fast in the American firmament.
“My...
Wonder Land: Justices Stephen Breyer and Amy Coney Barrett share at least one opinion: The Supreme Court is in trouble. Images: Pool/AFP/Getty Images Composite: Mark Kelly The Wall Street Journal Interactive Edition
At the start of each sitting of the U.S. Supreme Court, the participants and gallery hear this prayer: “God save the United States and this Honorable Court!” With court-packing in the air, one may ask: Does God think the Supreme Court is worth saving?
God’s opinion remains beyond reach, so we’ll fall back on the authority of Justices Amy Coney Barrett and Stephen Breyer, who both have worried aloud lately that the Supreme Court’s status may be falling fast in the American firmament.
“My goal today,” Justice Barrett said in a speech at Kentucky’s McConnell Center, “is to convince you that this court is not comprised of a bunch of partisan hacks.”
Delivering the Scalia Lecture at Harvard, the liberal Justice Breyer wondered whether Americans have come to see the justices as “a group of junior-league politicians.”
One may imagine with confidence that the last place Justice Breyer thought he would find himself is in the same political boat with Ms. Barrett or Justice Brett Kavanaugh, but that’s where he sits—getting shelled by Democrats. As “moderate” Democratic Sen. Amy Klobuchar said recently of Justice Breyer: “If he is seriously considering retirement, do it sooner rather than later.”
Speaking to the Journal recently, Justice Breyer suggested, “It isn’t really true that I was born on Pluto and don’t know what’s going on in the world. I think I do.”
What’s going on is that the left wants the old man and his fogey liberalism to get out of the way so they—excuse me, President Biden—can put one of their own on the Court.
Here’s a guess: If Justice Breyer thought Mr. Biden would nominate someone holding his views of the high court’s role, he would consider stepping down. From what we’ve seen so far of Mr. Biden’s presidency, the likelihood of extending Justice Breyer’s pragmatic liberalism is zero. Mr. Biden’s Supreme Court nominee will be closer to the ideology of the Squad, Congress’s minicaucus of left-of-left activists.
In their remarks, Justices Breyer and Barrett are expressing what many serious Americans sense, that the political system is sliding off the rails.
It’s obvious that many, if not most, Americans now think the Supreme Court is totally politicized, that contrary to Justice Barrett’s assertion, judges today look first for a result and then assemble precedential fig leafs to support that result—on abortion, gun rights, gender and the rest.
Until recently, most politicians would pay lip service to the notion that the Supreme Court’s independence and integrity are important. Today, give the political left credit for honestly arguing that they think this is hooey, that Democrats should kill the filibuster and pass Sen. Ed Markey’s bill to add four justices so they, with Joe Biden in tow, can create a high court that will rubber-stamp their politics.
Justice Breyer’s complaint against packing the court, described in his Scalia lecture, is that it would destroy, after 200 years, what’s left of the public’s habit of respect for the legitimacy of Supreme Court decisions.
In my view the court-packing posse is overwhelmingly about one thing—Roe v. Wade. That’s the lesson of the left’s meltdown over Texas’s anti-abortion law, giving private citizens a right of legal action against abortion providers. Progressives must recognize this means some conservatives are willing to adopt the left’s legal philosophy: Do what ya gotta do to get a judicial outcome, notably regarding abortion.
Justice Breyer says, “It is wrong to think of the Court as another political institution.” But he surely must understand how that happened.
When for example in 1969 the Supreme Court decided in the Tinker case that high-school students wearing black armbands had a constitutional right to protest the Vietnam War, Mr. Breyer was 31, a bit too old to be a founding participant in the counterculture, though today’s see-no-evil progressive prosecutors are the children of those system-wrecking founders.
Ever since, the courts have been in the business of calling balls and strikes on local school-discipline rules. Those decisions, like Roe v. Wade, extended the high court’s authority deeply into matters formerly reserved for smaller political jurisdictions and personal responsibility.
The Supreme Court’s willing dive into these matters came during a period begun in the 1960s when the broader culture was already eroding traditional authority, mores and values. The Supreme Court came to be seen as complicit, no matter how often its members argue there’s nobody here but us law-reading clerks. Justice Breyer recently wrote the decision for an 8-1 ruling in favor of an f-bomb-wielding high-school cheerleader. Arguably he is right on the law. But still.
For decades, politics, the culture and the courts have combined to spread a pandemic of doubt about our “system.” After all this, Stephen Breyer is refusing to quit the Supreme Court under pressure from that culture. He is now the little Dutch boy alone with his thumb in a leaking dike. He could use some help, from his friends.
Write henninger@wsj.com
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