What's wrong with Justices like Stephen Breyer.

Queen Anne addressing the House of Lords.

We noted the retirement of Justice Stephen Bryer on the day the news broke, here:

Lex Anteinternet: Courthouses of the West: Justice Stephen Breyer To...: Courthouses of the West: Justice Stephen Breyer To Retire. :  Justice Stephen Breyer To Retire. Just when you thought the news wasn't te..

Predictably, the New York Times is lamenting his retirement, noting: 

Yet Justice Breyer was anything but dull. As Linda Greenhouse writes in a guest essay this week, beneath his cool demeanor was a passion stirred by his clerkship as a young lawyer on Earl Warren’s Supreme Court. It was a court, she writes, “that understood the Constitution as an engine of progress.”

 

As his years as a justice on the court proceeded, Greenhouse writes that he ended up as the “quintessential Enlightenment man in an increasingly unenlightened era at the court.” Moreover, he found himself recently being urged by the left, at the age of 83, to retire lest the Senate fall into the hands of Republicans this fall and torpedo the chance that he would be replaced by a liberal or even a moderate on a court that has become increasingly conservative.

And this is part of exactly what was wrong with the Court and, dare we say it, part of how the country became the mess it is today, with a populist coup attempt just one year under our belt, and our commitment to democracy really shaky.

The Constitution is a law.  

It's not an engine of anything.  It was written in a certain place and time, by men who were elected to those positions at that date and time.

Understanding the Constitution as an engine, that is a driver, of progress assumes that an unelected panel of nine have a common definition of "progress", something that history suggests is problematic.  In the 1920s and 30s, for example, the most "progressive" Americans were far, far to the left of the nation as a whole, and even further to the left of the left today.  Is that progress?  Quite a few would regard "progress", both in political terms and in terms of what the court has imposed on the nation, undemocratically, since 1973, as not progressive at all, but rather as sort of a retrograde return to a sort of barbarism of earlier times.  Others would disagree, but the co-opting of the court of those issues has operated to keep them from being determined democratically or even to make a large section of the country feel completely disenfranchised.

That latter feeling is what gives rise, in part, to a "take my country back" or "keep our country" sort of feeling in part of the American electorate.  Losing at the polls is losing, but losing to a court, in a remote setting, on issues that no clear grounding in the Constitution is quite another thing.

And that's what has ultimately defined the much of the modern trend of the court.  Judicial conservatism, as understood by the press, isn't conservatism at all, but rather textual originalism.  If it isn't in there, it isn't

To go further, however, Breyer's career also demonstrates what's wrong with the Court.  Breyer didn't have to go into court in front of a judge on cases that had come in the door, from an insurance carrier, or on assignment from a boss.  He didn't have to puzzle out the meaning of a badly drafted statute and hunt down its legislative history.  He hardly had to work at being a lawyer at all.

And this is now common of the entire Court. Their tickets are punched by an elite Ivy League Law School that allows them to avoid practicing law and go on to making decisions for an entire country based on that early history.

The founders would not have had that in mind.

President Biden has already announced that Breyer's replacement will be a black woman.  There's a certain presumption, perhaps correct, that picking people by certain predetermined characteristics will achieve a certain result, although with the Supreme Court, that's tricky.  The most conservative justice on the Court, after all, is a black man.  There will no doubt be many black women lawyers who are qualified for the job.  We might hope, although it's hoping against hope, that whoever is chosen will not be a Harvard law graduate, nor even an Ivy League graduate.  We might also hope that the person isn't a sitting jurist, and isn't a college professor.

No, rather, a black woman lawyer who is actually practicing law.

That person will know what the law is about, how it is applied, and what real law is like.

It's not too much to hope for, but it won't happen.