Retired Supreme Court Justice Stephen Breyer is warning his colleagues against “writing too rigidly” in their opinions, saying that such decisions could “bite you in the back” in a world that is constantly changing.
In a wide-ranging interview with CNN’s Chris Wallace on “Who’s Talking to Chris Wallace,” which debuted Friday on HBOMax and airs Sunday night on CNN, Breyer also bemoaned his position in the court’s minority liberal bloc during his final year on the bench, addressed the court’s reversal of Roe v. Wade and spoke about the ongoing controversy regarding Ginni Thomas, the wife of Justice Clarence Thomas.
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.
“You start writing too rigidly and you will see, the world will come around and bite you in the back,” Breyer said in his first televised interview since leaving the bench earlier this year. “Because you will find something you see just doesn’t work at all. And the Supreme Court, somewhat to the difference of others, has that kind of problem in spades.”
“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.
Breyer weighed in on the court’s controversial decision in June to reverse Roe v. Wade, growing visibly emotional as he discussed the historic abortion rights case.
“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.
Breyer was careful during his interview not to wade into drama surrounding the political activity of Ginni Thomas, whose support of the efforts to overturn former President Donald Trump’s electoral defeat have come under scrutiny given her husband’s participation in a case that was before the Supreme Court concerning the House’s January 6 investigation.
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.”
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.
Breyer said that the court, which has long been known for its collegiality, has changed some as of late, using the “pleasant” conversations that usually occur between the justices at lunch after they deliberate over a case as an example of the shift.
“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.”