The book examined the nature of the court’s legitimacy and said it was undermined by labeling judges conservative or liberal. Judge Breyer distinguished between law and politics, writing that not all divisions in court were predictable and could generally be explained by differences in legal philosophy or interpretative methods.
In an interview with DailyExpertNews, he acknowledged that the politicians who had turned hearings into partisan brawls had different views, but said the judges acted in good faith, often reaching consensus and occasionally surprising the public in key cases.
“Hasn’t one of the most conservative – quoted – members joined the others in the gay rights case?” he asked in the interview, citing the view of Judge Neil M. Gorsuch in a 2020 ruling that a landmark civil rights law protects gay and transgender workers from discrimination in the workplace.
Judge Breyer was a headstrong questioner on the Supreme Court bench. Lawyers appearing in court sometimes disliked his elaborate hypothetical questions, which could resemble an inner monologue with a point recognizable only to him. They sometimes ended with a simple request: “Reply”.
At the same time, his questions expressed intense curiosity and an open mind, which often contrasted with the more strategic investigations of his fellow judges.
Judge Breyer sometimes made fine distinctions in his legal writings.
For example, both times he was the only majority judge in a couple of 2005 cases where a six-foot-tall Ten Commandments monument was allowed on the Texas Capitol grounds, but posting framed copies of the Commandments on the Capitol was unconstitutional. used to be. the walls of courthouses in Kentucky. A conservative bloc of judges would have maintained both types of displays, while a liberal bloc would have demanded their removal.
Judge Breyer wrote the majority opinion in 2000 in Stenberg v. Carhart, a 5-to-4 decision that overturned a Nebraska law banning a procedure his opponents called partial birth abortion.
He was characteristically balanced in presenting the clash of values.
“Millions of Americans believe that life begins at conception and therefore an abortion is equivalent to the death of an innocent child; they recoil at the thought of a law that would allow this,” he wrote. “Other millions fear that a law banning abortion would condemn many American women to lives without dignity, deprive them of equal liberty and lead those with the least resources to undergo illegal abortions with the associated risks of death and suffering. “