Colleagues have consistently described Breyer as down-to-earth and personable. Marrying political ideals to people skills was a hallmark of the late Sen. Edward Kennedy, with whom Breyer worked with closely throughout the 1970s during Watergate and then as special counsel to the Senate Judiciary Committee when Kennedy became its chairman in the late 1970s. It’s a job Breyer said was his favorite and the one that best prepared him for the Supreme Court.
Kennedy had a great sense of humor, especially about himself, listened to what others had to say, and did not believe in prioritizing perfection over the possible, all lessons that Breyer says he has tried to live by ever since.
“‘If you can get 30 percent out of that group, do it,’” he recalled Kennedy saying. “‘The people who would normally support you will say you’re a traitor and a rat. Forget that: You get the 30 percent as opposed to being a hero for nothing.’”
Known for his free-range questioning at oral arguments, Breyer said he tries not to go into the sessions with his mind made up. It’s an approach he learned from his earliest days on the court.
“My oral argument is a nightmare so often because I don’t prepare for it. I do ask what I think is on my mind at the time, so I’ve said all kinds of things that get me into a lot of trouble.” (Breyer once asked a lawyer a question that involved hypothetical mutant “tomato children” attacking Boston in a case about the federal government’s authority to regulate marijuana.)
After oral arguments each week, the justices typically gather to discuss what they think of the cases, each speaking in descending order of seniority. As the most junior justice for his first 11 years on the court, Breyer said that arrangement necessitated listening to the arguments advanced by the other justices before he spoke, which meant he had to keep his mind open longer and that perhaps helped him arrive at more nuanced positions than if he had spoken sooner.
“Nino did not. He thought everyone had his mind made up by the time he got into the conference room,” he said of the late Justice Antonin Scalia. “I don’t think that’s true.
“Being open-minded … is not not having a point of view. You have a point of view. I look at the blue briefs,” he said, referring to color of brief covers filed by petitioners to the Court. “I look at the first brief; and I read the questions. ‘Hey, I know the answer!’ And then I read the red [brief, from the opposing side]. ‘Oh, not so fast. Not so fast.’”
In counseling students, Breyer said he had no grand career plan coming out of law school, and advised them to “lighten up” a bit. His father had offered him some simple, no-nonsense advice that he took to heart: “Do your job and do it as well as you can, and then maybe somebody will notice, and you’ll get a better job. Maybe they won’t, but at least you’ve done the work.’”
Critics say the court has become clogged with justices cranking out dissents on every case. Breyer agrees.
“I think there are too many,” he said, but they do have a place. They don’t persuade the majority to shift, but sometimes they can get changes made if someone makes a good point in a dissent or can point out an important flaw that’s relevant in future cases. But they can be vanity traps, too.
“You’re playing to a big audience. Be aware of that. You’ll get The New York Times saying, ‘Oh, Justice Breyer wrote such a brave dissent.’ I just think, ‘Hey, if it was so great, why didn’t [the majority] write the opposite? They criticized it.’ Please. Don’t play for that. It’s a human quality that’s hard to resist.”
The Supreme Court, which will resume hearing oral arguments in person next month, signed off on livestreaming audio of oral arguments as a pandemic concession but has so far held the line on video, unlike many lower courts, which allow it. When asked whether the panel will ever reconsider, Breyer said it’s likely to happen at some point, but he doubted that would fully satisfy the public’s desire for transparency or help the country become less polarized.
Instead, the country would be better off if we just listen to each other and really hear what someone else has to say, and to participate in public life, whether it’s running for federal office or local library commission, he said.
Producing a copy of a pocket Constitution from his jacket, Breyer said, “I can tell you guys after 40 years of experience that this document won’t work unless you do that.”
