The book explored the nature of court legitimacy and said it was undermined by labeling judges as conservative or liberal. Drawing the distinction between law and politics, Justice Breyer wrote that not all divisions on the court were predictable and that those could generally be explained by differences in judicial philosophy or interpretive methods.
In an interview to The New York Times, he acknowledged that politicians have turned confirmation hearings into partisan scuffles, but he said the judges acted in good faith, often find consensus and sometimes surprise the public in important cases.
“Didn’t one of the most conservative members – quote – join the others in the gay rights case?” he asked in the interview, referring to Justice Neil M. Gorsuch’s 2020 majority opinion in a ruling that a landmark civil rights law protects gay and transgender workers from discrimination in the workplace.
Justice Breyer is a stylish questioner on the Supreme Court bench. The attorneys who appeared in court were sometimes frustrated with his elaborate hypothetical questions, which could seem like an inner monologue with a point that only he could discern. Sometimes they end with a simple request: “Answer.”
At the same time, his questions are evidence of intense curiosity and an open mind, often in contrast to the more strategic questions of his fellow judges.
In her judicial writing, Justice Breyer sometimes makes clear distinctions.
For example, he was the only justice most of the time both times in a 2005 pairing allow a six-foot-tall statue of the Ten Commandments on the premises of the Texas Capitol but held unconstitutionally posting framed copies of the Commandments on the walls of the Kentucky courts. A conservative block of judges would favor both types of exhibits, while a liberal bloc would demand their removal.
Justice Breyer wrote the majority opinion in 2000 in Stenberg sues Carharta 5 to 4 decision that eliminated a Nebraska law banning the procedure its opponents called partial abortions.
He is characteristically balanced in presenting the conflict of values.
“Millions of Americans believe that life begins at conception and therefore, abortion is like causing the death of an innocent child; they startle at the thought of a law that would allow it,” he wrote. “Millions of others fear that legislation banning abortion will condemn many American women to a lack of dignity, deprive them of their equal freedoms, and expose those with the fewest resources to illegal abortions at risk. death and suffering.”
https://www.nytimes.com/2022/01/26/us/politics/justice-stephen-breyer.html Justice Breyer’s Legacy: Liberals Reject Labels Like ‘Liberal’