Such a judicial arms race, the justice said, could undercut public faith in the court and imperil the rule of law. Nobody really knows, but theres a risk, and how big a risk do you want to take? he said.
Why do we care about the rule of law? Justice Breyer added. Because the law is one weapon not the only weapon but one weapon against tyranny, autocracy, irrationality.
Term limits were another matter, he said.
It would have to be a long term, because you dont want the person there thinking of his next job, he said.
Term limits would also have a silver lining for justices deciding when to retire, he added. It would make my life easier, he said.
Justice Breyer said the court should be deciding fewer emergency applications on its shadow docket, in which the justices often issue consequential rulings based on thin briefing and no oral arguments. Among recent examples were the ruling on Tuesday that the Biden administration could not immediately rescind a Trump-era immigration policy and a ruling issued a few hours after the interview striking down Mr. Bidens eviction moratorium.
In both, the three liberal justices were in dissent.
Justice Breyer said the court should take its foot off the gas. I cant say never decide a shadow-docket thing, he said. Not never. But be careful. And Ive said that in print. Ill probably say it more.
Asked whether the court should supply reasoning when it makes such decisions, he said: Correct. I agree with you. Correct.read more
Justice Breyer on Retirement and the Role of Politics at the Supreme Court
