The judges begging the Supreme Court to use its position to protect the judiciary specifically flagged the Court\u2019s unexplained shadow docket rulings for feeding the Trump administration\u2019s 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 \u201cwar\u201d with federal judges<\/a>, and the Supreme Court \u2014 fully aware of this fact \u2014 keep firing off \u201cwe can\u2019t explain why, but let\u2019s just say you\u2019re wrong\u201d opinions seized upon by these bad faith actors. Unsurprisingly, the shadow docket took a starring role in the earlier panel discussion.<\/p>\n Justice Abella, serving as the audience\u2019s surrogate, offered the outsider perspective that the current use of the shadow docket is as loony as a Canadian dollar. \u201cThe idea of injunctive relief is not anything new,\u201d she explained. \u201cOur tradition is \u2018irreparable harm.\u2019 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.\u201d Justice Breyer kept things positive, noting that the emergency docket isn\u2019t new, and laying out reasons why the Court would want to avoid becoming locked into a decision prematurely. <\/p>\n And yet, that\u2019s a hallmark of every preliminary injunction. A judge has to devote some ink to \u201clikelihood of success.\u201d Do district judges possess some magical power to overcome this snap judgment that the Supreme Court lacks? Reading between the lines of Breyer\u2019s comments, he would likely say the Supreme Court\u2019s thoughts can carry unintended persuasive power. That is a sound explanation historically, but runs headlong into the current majority\u2019s angry insistence<\/a> that lower courts should<\/em> give the Court\u2019s shadow docket outcomes persuasive power. <\/p>\n Which strikes at the heart of the primary criticism Justice Breyer has taken in recent years<\/a>. He\u2019s an enthusiastic cheerleader for an idyllic system that just doesn\u2019t 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\u2019t call out the increasingly explicit cynicism of the Supreme Court\u2019s majority, but he\u2019ll write thoughtful, respectful critiques of originalism<\/a> \u2014 a favor that the conservative legal movement would never<\/em> return, as they run to Fox News to declare judges applying settled caselaw as \u201cradical activist judges.\u201d<\/p>\n Breyer often cites \u201cthe 7th graders,\u201d the students he speaks with about civics in \u201cthe nurseries of democracy\u201d (to quote Breyer\u2019s opinion in\u00a0Mahanoy Area School District v. B.L.<\/em>). Relentless positivity is all well and good for a classroom, but adults might need a bracing dose of \u201cy\u2019all in danger!\u201d 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\u2019s 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, \u201cthey find people who disagree with them, and that they talk those people and find out how we get together.\u201d He cites Ted Kennedy\u2019s model, pointing out that Kennedy handed out credit to Republicans to get practical wins. <\/p>\n \u201cAnd it\u2019s the look in their eyes. It\u2019s that look in their eyes when they\u2019re thinking of what they\u2019re 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 \u2014 in the seventh grader in the high schooler \u2014 I suddenly say, \u2018I have cause for optimism.’\u201d<\/p>\n<\/blockquote>\n 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.<\/p>\n Breyer keeps appealing to the better angels of the judiciary\u2019s nature, even when those angels long ago split town. Probably for a luxury vacation financed by conservative donors<\/a>. 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 naivet\u00e9. During the panel, Breyer quoted Albert Camus \u2014 a notably cheery author \u2014 to remind the audience that point of The Plague<\/em> is that the plague germ \u2014 Nazism \u2014 never dies. \u201cIt 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\u2026 For one day, for the education, or perhaps for the misfortune of mankind, evil once again, since it\u2019s rats into a once happy city.\u201d <\/p>\n Starting to see why the conservatives have such a visceral distaste of vaccines.<\/p>\n Breyer continues, \u201cthe 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.\u201d<\/p>\n Sure. But where does optimism fit into sharpening that weapon?<\/p>\n In a poignant, unintentional juxtaposition, Justice Abella and Justice Breyer told two different formative anecdotes rooted in their post-War upbringings. \u201cI was born in Germany in 1946,\u201d Justice Abella explained. \u201cMy parents were in a concentration camp. I was revenge. And I honestly believe that without strong, fearless courts, there\u2019s no hope for democracy anywhere.\u201d Growing up in San Francisco, Justice Breyer recounted his father taking him to City Hall in 1945, and telling the six-year-old Breyer, \u201cThose people are here to write the United Nations charter,\u201d and pointing out global dignitaries. Competing childhood encounters with the trauma of the 20th century. <\/p>\n 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.<\/p>\n 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<\/em>. 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\u2019s playing. Yes, he\u2019s blocking for the problematic mixed bag offense that is the 2025 federal judiciary, but it\u2019s protection that needs to be there if the new draft picks are ever going to fix things. <\/p>\n And sometimes defending the whole team means pretending the current QB isn\u2019t a feckless degenerate.<\/p>\n The Boies Prize says \u201cexceptional commitment to justice and the betterment of society.\u201d It doesn\u2019t assign a role to how the recipient gets there. Breyer continues to hold up the hope side of the equation so we don\u2019t have to. <\/p>\n The post Justice Breyer Wants You To Believe We Can Make It Out Of This Mess<\/a> appeared first on Above the Law<\/a>.<\/p>\n 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.<\/p>\n David Boies presented the award, bestowed upon a recipient for their \u201cexceptional commitment to justice and the betterment of society,\u201d introducing his former Senate Judiciary Committee colleague and sitting down for a brief fireside chat. It was Breyer\u2019s second speaking engagement of the day, having opened the morning with an NYU panel discussion on \u201cDemocratic Institutions Under Pressure: A Judicial Perspective\u201d with retired Canadian Supreme Court Justice Rosalie Abella and moderated by NYU Constitutional Law Professor Sam Issacharoff.<\/p>\n 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\u2019s a topic that dominated a panel at the recent Society for the Rule of Law conference<\/a> as well. Recently, twelve anonymous judges called upon the Supreme Court<\/a> 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<\/a>. Breyer praised the security that\u2019s 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. <\/p>\n The judges begging the Supreme Court to use its position to protect the judiciary specifically flagged the Court\u2019s unexplained shadow docket rulings for feeding the Trump administration\u2019s 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 \u201cwar\u201d with federal judges<\/a>, and the Supreme Court \u2014 fully aware of this fact \u2014 keep firing off \u201cwe can\u2019t explain why, but let\u2019s just say you\u2019re wrong\u201d opinions seized upon by these bad faith actors. Unsurprisingly, the shadow docket took a starring role in the earlier panel discussion.<\/p>\n Justice Abella, serving as the audience\u2019s surrogate, offered the outsider perspective that the current use of the shadow docket is as loony as a Canadian dollar. \u201cThe idea of injunctive relief is not anything new,\u201d she explained. \u201cOur tradition is \u2018irreparable harm.\u2019 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.\u201d Justice Breyer kept things positive, noting that the emergency docket isn\u2019t new, and laying out reasons why the Court would want to avoid becoming locked into a decision prematurely. <\/p>\n And yet, that\u2019s a hallmark of every preliminary injunction. A judge has to devote some ink to \u201clikelihood of success.\u201d Do district judges possess some magical power to overcome this snap judgment that the Supreme Court lacks? Reading between the lines of Breyer\u2019s comments, he would likely say the Supreme Court\u2019s thoughts can carry unintended persuasive power. That is a sound explanation historically, but runs headlong into the current majority\u2019s angry insistence<\/a> that lower courts should<\/em> give the Court\u2019s shadow docket outcomes persuasive power. <\/p>\n Which strikes at the heart of the primary criticism Justice Breyer has taken in recent years<\/a>. He\u2019s an enthusiastic cheerleader for an idyllic system that just doesn\u2019t 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\u2019t call out the increasingly explicit cynicism of the Supreme Court\u2019s majority, but he\u2019ll write thoughtful, respectful critiques of originalism<\/a> \u2014 a favor that the conservative legal movement would never<\/em> return, as they run to Fox News to declare judges applying settled caselaw as \u201cradical activist judges.\u201d<\/p>\n Breyer often cites \u201cthe 7th graders,\u201d the students he speaks with about civics in \u201cthe nurseries of democracy\u201d (to quote Breyer\u2019s opinion in\u00a0Mahanoy Area School District v. B.L.<\/em>). Relentless positivity is all well and good for a classroom, but adults might need a bracing dose of \u201cy\u2019all in danger!\u201d 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\u2019s 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, \u201cthey find people who disagree with them, and that they talk those people and find out how we get together.\u201d He cites Ted Kennedy\u2019s model, pointing out that Kennedy handed out credit to Republicans to get practical wins. <\/p>\n \u201cAnd it\u2019s the look in their eyes. It\u2019s that look in their eyes when they\u2019re thinking of what they\u2019re 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 \u2014 in the seventh grader in the high schooler \u2014 I suddenly say, \u2018I have cause for optimism.’\u201d<\/p>\n<\/blockquote>\n 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.<\/p>\n Breyer keeps appealing to the better angels of the judiciary\u2019s nature, even when those angels long ago split town. Probably for a luxury vacation financed by conservative donors<\/a>. 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 naivet\u00e9. During the panel, Breyer quoted Albert Camus \u2014 a notably cheery author \u2014 to remind the audience that point of The Plague<\/em> is that the plague germ \u2014 Nazism \u2014 never dies. \u201cIt 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\u2026 For one day, for the education, or perhaps for the misfortune of mankind, evil once again, since it\u2019s rats into a once happy city.\u201d <\/p>\n Starting to see why the conservatives have such a visceral distaste of vaccines.<\/p>\n Breyer continues, \u201cthe 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.\u201d<\/p>\n Sure. But where does optimism fit into sharpening that weapon?<\/p>\n In a poignant, unintentional juxtaposition, Justice Abella and Justice Breyer told two different formative anecdotes rooted in their post-War upbringings. \u201cI was born in Germany in 1946,\u201d Justice Abella explained. \u201cMy parents were in a concentration camp. I was revenge. And I honestly believe that without strong, fearless courts, there\u2019s no hope for democracy anywhere.\u201d Growing up in San Francisco, Justice Breyer recounted his father taking him to City Hall in 1945, and telling the six-year-old Breyer, \u201cThose people are here to write the United Nations charter,\u201d and pointing out global dignitaries. Competing childhood encounters with the trauma of the 20th century. <\/p>\n 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.<\/p>\n 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<\/em>. 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\u2019s playing. Yes, he\u2019s blocking for the problematic mixed bag offense that is the 2025 federal judiciary, but it\u2019s protection that needs to be there if the new draft picks are ever going to fix things. <\/p>\n And sometimes defending the whole team means pretending the current QB isn\u2019t a feckless degenerate.<\/p>\n The Boies Prize says \u201cexceptional commitment to justice and the betterment of society.\u201d It doesn\u2019t assign a role to how the recipient gets there. Breyer continues to hold up the hope side of the equation so we don\u2019t have to. <\/p>\n The post Justice Breyer Wants You To Believe We Can Make It Out Of This Mess<\/a> appeared first on Above the Law<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" 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. 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Joe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n\n
\nJoe Patrice<\/a>\u00a0is a senior editor at Above the Law and co-host of Thinking Like A Lawyer<\/a>. Feel free to\u00a0email<\/a> any tips, questions, or comments. Follow him on\u00a0Twitter<\/a>\u00a0or Bluesky<\/a> if you\u2019re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search<\/a>.<\/em><\/strong><\/p>\n