At Law & Liberty, John McGinnis, The Pitfalls of Justice Breyer’s Rambling Consequentialism (reviewing Justice Breyer's book The Authority of the Court and the Perils of Politics (Harvard University Press 2021)). From the introduction:
… Given that the Supreme Court has no effective power to enforce its judgments, what makes other political actors respect the decisions of the Court? As Breyer notes at the beginning [of the book], the question of why we obey the law goes back to ancient times. Cicero provided three possible answers for legal obedience: fear of punishment, hope of rewards, or the perception that the law is just.
But Breyer never concisely answers the question of why Americans demand that their leaders obey the decisions of the Supreme Court in particular cases, even as they and their leaders frequently disagree with those decisions. He consistently observes that Americans have over time acquired a habit of obedience. But that answer just raises the question of what inculcated that habit and what will perpetuate it.
A brief approximation of Breyer’s answer is the courts will inculcate habits of obedience if they are not regarded as “political.” This conclusion is not original, but it is in a sense originalist. In Federalist 78, Alexander Hamilton argued that the Supreme Court was the branch most fitted for constitutional review because it did not act through “will” (read politics) but judgment. That capacity for dispassionate judgment unaffected by the kind of politics that motivates elected officials provides the Court’s advantage over the other branches of government in maintaining the constitutional order. According to Breyer, Americans will keep obeying the Supreme Court so long as they by and large agree with Hamilton’s claims.
And from later on:
The greatest failing of the book is that he does not consider at all how jurisprudence bears on the political appearance of the Court. At one point he says that he does not want to get into jurisprudential debates, but he clearly lays out his own—one that eschews adherence to an originalist parsing of text in favor of broad values, like democracy or equality, that he claims animate the constitution as well as focusing on the consequences of the Court’s decisions.
But it is precisely this kind of jurisprudence that makes the justices seem like politicians in robes and that is likely to undermine the public’s perception of their comparative advantage [of non-partisanship]. Politicians also claim their policies will advance broad values like democracy and equality. They make claims for the beneficial consequences of their policies. Whatever else may be said about originalism, its careful attention to the meaning of an old text and complex legal rules for interpreting it do not have any resemblance to a stump speech.
In Federalist 78, Alexander Hamilton noted this difference in method while defending judicial review: “To avoid an arbitrary discretion in the courts, it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” By precedents, Hamilton here likely means precedents on methods of textual interpretation. His discussion of judicial method does not resemble at all Breyer’s emphasis on values and consequences.
Posted at 6:09 AM