Stephen Breyer has left the perma-dissent writing life of a liberal on the Supreme Court for retirement. But he’s not heading to Shady Pines anytime soon. We already know he’s teaching at Harvard Law and will be the chair of the American Bar Association’s Rule of Law Initiative Board, overseeing a 20-member board and five regional councils that run the ROLI, which promotes “justice, economic opportunity and human dignity through the rule of law.”
As (predictably) reported by the ABA Journal, he has many high-minded things to say about the rule of law:
“They are people who will be able to convince their neighbors and talk to their friends in countries across the world of why it is that we in our little village or town should support a rule of law that means we will sometimes see the law take a shape that we don’t like,” Breyer said in an interview with the ABA Journal. “We may be against it. The other person may win. But still, we support it. Why? The people who can explain that best are lawyers, judges and others with experience.
“Many of them are in the United States, and many of them can tell stories to their counterparts in other places about how the United States took centuries to reach a stage where the rule of law has the importance it has. The rule of law will not save the world from the evil portions of human nature, but it can help.”
“Given the problems of the world and how the world has shrunk, how everybody is connected with everybody—which is good, but it can also be bad—I think it is important that many if not all of those people understood the virtues of the rule of law,” Breyer says. “This is a well-functioning organization that is well on the road to doing that and is doing the best they can. No one can do anything more but try, [and] here they are trying. To be part of that and to spend even a little time helping that, I think is a very valuable use of my time.”
But not content to stick with empty platitudes, Breyer decided to use the United States — in the year of our lord 2022 — as a shining example of the rule of law.
“I didn’t agree with Bush v. Gore, I dissented, and what Reid said was, ‘You know, the rule of law, maybe you have it when you are prepared—or enough people are prepared—to accept an opinion that affects them personally, but they don’t like the way it affects them. And by the way, maybe it’s wrong,’” Breyer said. “That describes quite a few [opinions].”
But, Breyer added, because the rule of law is respected in the United States, “there were no stones thrown in the streets, there were no rocket attacks, there was no beating people up” over the decision. To ensure this continues in this country, he stressed that it is up to lawyers to maintain a strong legal system.
“It means the lawyers in this organization as well as others have to stand up and say something when they think something is against the rule of law,” Breyer said. “Because that’s what they’re about.”
Friend, that is not who we are as a nation anymore. (If we ever really were.)
Let’s put a pin in the fact that the Bush v. Gore decision was a horrendous affair that arguably begat the politicization of the Court that plagues us today. Because there is sooooo much more f’d about this.
Like… is the rule of law not the 50 years of reproductive freedom we once enjoyed that was upended by his former colleagues? Time it was that the U.S.’s respect for precedent was the literal backbone of our legal system. Now it just feels like a nice lie we tell ourselves before the YOLO Supreme Court enacts whatever policy modern conservatives currently fancy.
And also, there were a whole bunch of folks, who, um, just happened to be at the Capitol on January 6, 2021, who are pretty solidly anti-rule of law. Listen, I appreciate the earnestness with which… all of this was said. But, you know, maybe don’t go around bragging about how great the U.S.’s rule of law/peaceful transition of power ethos is when we’re less than a full election cycle away from a legit coup. Yes, Al Gore was pretty gracious in the “loss” of the 2000 election, but pretty much EVERYTHING that’s happened since then means the United States should take a fucking seat when the rule of law comes up.
I appreciate that Breyer pretty clearly yearns for the pre-Trump days or, perhaps more accurately, a time when both parties acted with a sense of decorum. But that’s not 2022, and trying to wish away the debacle of 2016 forward doesn’t actually help anyone move forward.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).