It feels borderline therapeutic these days to be in a room with someone who still believes the Supreme Court can be coaxed back into functioning like a responsible branch of government instead of the feral political creature rampaging across constitutional order. Last week, Justice Stephen Breyer received the inaugural David Boies Prize at a ceremony hosted by the NYU School of Law, projecting a level of hopefulness typically reserved for Cubs fans in March. The sort of hope that comes with an understanding that they will let you down over and over, but sticking with it because it will all be worth it if it ever does pay off.

David Boies presented the award, bestowed upon a recipient for their “exceptional commitment to justice and the betterment of society,” introducing his former Senate Judiciary Committee colleague and sitting down for a brief fireside chat. It was Breyer’s second speaking engagement of the day, having opened the morning with an NYU panel discussion on “Democratic Institutions Under Pressure: A Judicial Perspective” with retired Canadian Supreme Court Justice Rosalie Abella and moderated by NYU Constitutional Law Professor Sam Issacharoff.

Over the course of the two events, Breyer laid out cautious optimism at a time when threats to the judiciary and democracy continue to pile up. Boies jumped directly to the former, asking about the heightened threat level courts are dealing with. It’s a topic that dominated a panel at the recent Society for the Rule of Law conference as well. Recently, twelve anonymous judges called upon the Supreme Court to do something to improve the situation. In response to these grave threats to personal safety and the pall it places over the judicial system, Republicans have called for an investigation to punish the judges for speaking out. Breyer praised the security that’s been stepped up to deal with the new environment, while tying these human fears to the institutional risk of a judiciary losing its actual or perceived independence if judges fear for themselves or their children.

The judges begging the Supreme Court to use its position to protect the judiciary specifically flagged the Court’s unexplained shadow docket rulings for feeding the Trump administration’s narrative that lower court judges are acting lawlessly. The Deputy Attorney General is calling on the same yahoos who stormed the Capitol to go to “war” with federal judges, and the Supreme Court — fully aware of this fact — keep firing off “we can’t explain why, but let’s just say you’re wrong” opinions seized upon by these bad faith actors. Unsurprisingly, the shadow docket took a starring role in the earlier panel discussion.

Justice Abella, serving as the audience’s surrogate, offered the outsider perspective that the current use of the shadow docket is as loony as a Canadian dollar. “The idea of injunctive relief is not anything new,” she explained. “Our tradition is ‘irreparable harm.’ Where is there irreparable harm? But what seems to be happening in this shadow topic regime is, rather than a protection of the status quo, is a protection of the new status quo.” Justice Breyer kept things positive, noting that the emergency docket isn’t new, and laying out reasons why the Court would want to avoid becoming locked into a decision prematurely.

And yet, that’s a hallmark of every preliminary injunction. A judge has to devote some ink to “likelihood of success.” Do district judges possess some magical power to overcome this snap judgment that the Supreme Court lacks? Reading between the lines of Breyer’s comments, he would likely say the Supreme Court’s thoughts can carry unintended persuasive power. That is a sound explanation historically, but runs headlong into the current majority’s angry insistence that lower courts should give the Court’s shadow docket outcomes persuasive power.

Which strikes at the heart of the primary criticism Justice Breyer has taken in recent years. He’s an enthusiastic cheerleader for an idyllic system that just doesn’t exist right now. And yet, after taking flack for implying that retiring to preserve a Democratic appointment on the Supreme Court would damage the institution by making it appear too political, he channeled his inner Cincinnatus to ensure that Justice Ketanji Brown Jackson could take his seat. He won’t call out the increasingly explicit cynicism of the Supreme Court’s majority, but he’ll write thoughtful, respectful critiques of originalism — a favor that the conservative legal movement would never return, as they run to Fox News to declare judges applying settled caselaw as “radical activist judges.”

Breyer often cites “the 7th graders,” the students he speaks with about civics in “the nurseries of democracy” (to quote Breyer’s opinion in Mahanoy Area School District v. B.L.). Relentless positivity is all well and good for a classroom, but adults might need a bracing dose of “y’all in danger!” For that matter, does the young adult audience preparing to enter the proto-Hunger Games of Trumpist America even need this positivity anymore? In Breyer’s experience, the only thing that gets the students to stop idly looking out the window and engaged in the conversation is the promise of participation. The idea that, “they find people who disagree with them, and that they talk those people and find out how we get together.” He cites Ted Kennedy’s model, pointing out that Kennedy handed out credit to Republicans to get practical wins.

“And it’s the look in their eyes. It’s that look in their eyes when they’re thinking of what they’re actually going to do to help keep these 340 million people stay together as a nation. Stay together, despite their diversity. When I see that look in their eyes — in the seventh grader in the high schooler — I suddenly say, ‘I have cause for optimism.’”

He avoids mentioning that those same Republicans would turn around and use Kennedy as a campaign punching bag, an empty signifier of liberal moral decay and symbol of the civil rights era to gin up their own racist voters. That part of the story is less inspiring.

Breyer keeps appealing to the better angels of the judiciary’s nature, even when those angels long ago split town. Probably for a luxury vacation financed by conservative donors. While this can frustrate critics who think Breyer fails to understand the precariousness of the moment, his hopefulness (like that of the aforementioned Cubs fan) should not be mistaken for naiveté. During the panel, Breyer quoted Albert Camus — a notably cheery author — to remind the audience that point of The Plague is that the plague germ — Nazism — never dies. “It goes into remission. It goes into remission and it lurks. It lurks in the attics, it lurks in the file cabinets, it lurks in the basement, it works in the hallway… For one day, for the education, or perhaps for the misfortune of mankind, evil once again, since it’s rats into a once happy city.”

Starting to see why the conservatives have such a visceral distaste of vaccines.

Breyer continues, “the rule of law is one weapon, not the only weapon, but one weapon, that people have to go over long periods of time. to try to keep those rats in remission.”

Sure. But where does optimism fit into sharpening that weapon?

In a poignant, unintentional juxtaposition, Justice Abella and Justice Breyer told two different formative anecdotes rooted in their post-War upbringings. “I was born in Germany in 1946,” Justice Abella explained. “My parents were in a concentration camp. I was revenge. And I honestly believe that without strong, fearless courts, there’s no hope for democracy anywhere.” Growing up in San Francisco, Justice Breyer recounted his father taking him to City Hall in 1945, and telling the six-year-old Breyer, “Those people are here to write the United Nations charter,” and pointing out global dignitaries. Competing childhood encounters with the trauma of the 20th century.

And Abella is the more outwardly skeptical. Worried about hate speech and demagoguery, frightened that the American judicial system might be buckling from the top, and sounding the alarm that the rats are already entering the city. Breyer is optimistically evangelizing about the the spirit of community and the peace to come. Those worldviews may seem in tension, but the post-War order was built on both. Abella warns us what happens if we fall asleep. Breyer insists we can still wake up. Fighting the rot all the time collapses into nihilism without a little hope.

Preserving democracy is a team sport. Not everyone needs to be railing against the horrors all the time. Someone needs to get in the trenches and do the less glamorous offensive line work, hyping the world where institutions once functioned free from cynicism and corruption and might do so one day again. Maybe this is now a Bears fan analogy? In any event, criticizing Breyer for not joining the chorus raging against the depredations upon constitutional order misses the role he’s playing. Yes, he’s blocking for the problematic mixed bag offense that is the 2025 federal judiciary, but it’s protection that needs to be there if the new draft picks are ever going to fix things.

And sometimes defending the whole team means pretending the current QB isn’t a feckless degenerate.

The Boies Prize says “exceptional commitment to justice and the betterment of society.” It doesn’t assign a role to how the recipient gets there. Breyer continues to hold up the hope side of the equation so we don’t have to.

Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

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