Stephen Breyer believes Donald Trump’s appointees on the bench are not concerned enough about the declining public trust, especially after the past couple of bombshell rulings.
Breyer, a retired justice, has written a new book titled “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” which will be published on March 26. On that date, the Supreme Court will hear a case about access to mifepristone, an “abortion pill.”
In the book, Breyer cited the three justices Donald Trump appointed. He referred to them as “new justices” who had been in the court for “two or three years.” Justice Neil Gorsuch joined the Court in April 2018, and Brett Kavanaugh in October 2018. However, Amy Coney Barrett did not join until October 2020.
Breyer discussed the major cases that have come before the court’s fairly new conservative supermajority in his book, writing: “Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.”
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He added that his former colleagues may also be concerned about the declining trust in the court. “Something important is going on,” Breyer said in an interview published Monday. The court has taken a wrong turn, and it is not too late to turn back.”
According to the most recent Gallup poll, the public’s view of the court is near record lows. In a survey conducted last September, only 41 percent of citizens approve of how the justices handle their jobs.
The court’s approval rating first fell to a record-low 40 percent in September 2021. This came after it failed to block a controversial Texas abortion law, which came nine months before the Dobbs v. Jackson Women’s Health Organization decision that overturned Roe v. Wade and the constitutional right to an abortion. The court’s rating has yet to recover.
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The September 2023 poll also found that 49 percent of respondents have “a great deal” or “a fair amount” of trust in the court. That is quite a low figure because, before 2022, trust in the judicial branch averaged 68 percent.
Besides the low ratings, the court has been getting too deep into ethics controversies. Chief Justice John Roberts finally addressed the topic last year. “I want to assure people that I am committed to making certain that we as a Court adhere to the highest standards of conduct,” he said.
However, despite the persistent ethics concerns, Roberts did not acknowledge them in his annual “Year-End Report on the Federal Judiciary.”
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In his new book, Breyer said that the supermajority may have hoped “that legislatures and not courts will decide the abortion question.” However, the actions that followed the verdict highlighted the naïveté of those expectations.
In his interview with the Times, the former liberal justice said, “There are too many questions. Are they really going to allow women to die on the table because they won’t allow an abortion, which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that,” he said.
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