Former Supreme Court Justice Stephen Breyer said that his former high court colleagues are not easily swayed by public opinion when deciding key cases.
Speaking on “This Week” Sunday, the former justice disagreed with claims that the U.S. Supreme Court has become politicized.
He also responded to a question on whether political division has impacted the Supreme Court: “Hard to say. It’s a different, it’s a very complex institution ... I’ve not seen politics in the court. And I’ve been a judge for 40 years.” Sometimes, however, they have to consider the real-world consequences of their rulings, he added.
Instead, the justices are influenced by their interpretations of the U.S. Constitution and various laws, their relationships, and sometimes how they are viewed by the public, Justice Breyer said.
“It may be that you can find a compromise in the conference or a way of approaching things in the conference that will, in fact, solve a number of problems. And that could be one of the problems,” the retired justice said. “[Former Supreme Court Justice] Sandra O'Connor used to say this: The first unwritten rule is nobody speaks twice ’til everyone speaks once. Second unwritten rule: Tomorrow is another day. You and I were the greatest of allies on case one. Case two, we’re absolutely at loggerheads,” he added.
Justice Breyer retired in June 2022, setting up the nomination and confirmation of Justice Ketanji Brown Jackson. Since his retirement, the Supreme Court has faced a number of protests, including when the court overturned Roe v. Wade that same year, as well as a ruling against affirmative action the following year.
The Supreme Court this year issued a 9-0 ruling that ruled against states that blocked former President Donald Trump from appearing on ballots during the 2024 election.
Last month, Justice Breyer also rejected claims that the Supreme Court is becoming biased. “The political people desperately want to say that the judges are deciding on political bases. I don’t think that’s true,” he said.
Disagreements among the justices are civil, he added, and are generally private. “It’s important because then everyone feels they’ve participated. Everyone feels that the others have a chance to listen to them,” the former justice said.
This week, the Supreme Court will hear arguments regarding the former president’s claim of presidential immunity in a variety of cases. The former president appointed three justices when he was in office.
The election-related case against President Trump has been on hold while his immunity appeals are pending, meaning that no pre-trial preparations have taken place since mid-December.
U.S. District Judge Tanya Chutkan is expected to give prosecutors and defense attorneys at least three months to get ready for trial if the case returns to her court. Further pre-trial legal battles are certain even after the case resumes in her court.
The trial is expected to take months, which means it will likely coincide with the election unless it begins by August. Special counsel Jack Smith’s team has said the government’s case should take no longer than four to six weeks, but that doesn’t include any defense President Trump could put forward. Jury selection alone could take weeks.
The Supreme Court has agreed to decide a legally untested question: whether former presidents are immune from prosecution for official acts performed in office. This question is novel because, until President Trump, no ex-president had ever been charged with a crime. The Supreme Court has previously held that presidents are immune from civil liability for official acts.
