Stop Interviewing Justice Breyer
But if you must, make him answer for the horrors the Supreme Court has unleased on the American public.
On Thursday, CNN published a “wide-ranging” interview with Justice Stephen Breyer. For those wondering, this was different from the “wide-ranging” interview Breyer sat for with a CNN journalist ten days ago. It’s also different from the interview CNN’s Fareed Zakaria conducted with Breyer in September, as well as the “exclusive” interview with Breyer CNN published in July. And to be clear, these are all distinct from Breyer’s interviews with NPR in September, the New York Times in August and Fox News in September.
These interviews all share some common characteristics. There is usually some side-stepping of a question about Breyer’s retirement, such as his useless statement to the Times, “I don’t think I’m going to stay there till I die.” This is then generally followed by some vague, self-aggrandizing statements about the Supreme Court and the importance of separating law and politics. Breyer tells us, for example, that the Supreme Court is “an institution that’s fallible, though over time it has served this country pretty well,” and that if people don’t follow the Court’s opinions, “we won’t have a rule of law.”
The interviews also have another thing in common: Breyer’s book, The Authority of the Court and the Peril of Politics, which was published in September. There is no hiding the fact that this recent media blitz is a blatant effort to promote Breyer’s book—nearly every published interview in the past several months mentions it.
Of course, there’s nothing wrong with that on its own. People do book tours all the time, and the public could use a little more transparency into how the nation’s highest court functions and how its life-tenured judges perceive the harrowing realities of our time. But the media’s job isn’t to promote a sitting justice’s book. At rock bottom, its a journalist’s obligation to challenge Breyer’s lofty, sweeping statements about the Court and its history, especially at a time when critics are rightfully concerned about the far-right’s unwavering grasp on the judiciary and its attacks on democracy. It is simply malpractice to let someone as powerful as Justice Breyer muse about the preeminence of the Supreme Court without demanding even a shred of accountability or substance. But that’s exactly what we’ve gotten, time and time again.
Take Breyer’s oft-repeated theme of the rule of law. “Why do we care about the rule of law?” Breyer asked in his Times interview. “Because the law is one weapon — not the only weapon — but one weapon against tyranny, autocracy, irrationality.” These statements, while lacking any context or substance, are generally offered in response to questions about the various proposals offered by progressives to reform the Supreme Court. Anyone with even a sliver of familiarity with the Court’s rulings in the past several decades would raise an eyebrow at Breyer’s remark. For one thing, if the rule of law is so important, how do you explain the Supreme Court’s brutal attacks on voting rights, or its evisceration of campaign finance regulations, or its decision to halt a recount and literally decide a presidential election unilaterally?
If Breyer does have an answer, we don’t know, because he’s never asked. Similarly, Breyer’s whitewashing of the Supreme Court’s history—“the court has had many ups and downs,” “it has served this country pretty well”—is left entirely unchallenged. Even a cursory discussion of the issue should probably touch on, I don’t know, the Supreme Court decisions upholding slavery, internment of Japanese Americans, segregation and the forced sterilization of people with disabilities. But don’t expect any effort to confront the Court’s objectively troubling history—Breyer’s picture of the Court as a vigorous, albeit imperfect, force for good is left almost entirely untouched.
It’s not hard to see what’s going on here. Breyer interviews are the ultimate click-bait. Besides the guaranteed rage-induced clicks and tweets—which, yes, I too am certainly guilty of participating in—any hint of Breyer’s plans for the future is unquestionably of enormous consequence. With Democrats’ Senate majority hanging in the balance, Breyer is the only thing standing in the way of a 7-2 far-right firewall on the Court for a generation. That’s big stuff, and if you want major scoops about the likely trajectory of the Supreme Court, you probably think twice about grilling an 83 year-old man on a book tour.
What the public is left with is a maddeningly misleading picture of the Supreme Court from one of the most powerful—and self-interested—people in the country. Fortunately, the American public is beginning to catch-on despite the consistent gaslighting from Breyer and the other justices, with approval of the Supreme Court recently falling to a historic low of 40%. But to the extent the justices—and other elites in the legal industry—are going to deceive the public about the Court, journalists should not play along. At this point, it’s hard to understand why any further interviews with Justice Breyer are necessary at all—nearly nothing he has said is remotely interesting or newsworthy. But if you must, do it right, and make Justice Breyer answer for the horrors his precious institution has unleased on this country.