Breyer tells Colbert the Supreme Court should not be on camera, and the justices are collegial.

Stephen Breyer Tells Stephen Colbert’s TV Audience the Supreme Court Should Not Be on TV

Stephen Breyer Tells Stephen Colbert’s TV Audience the Supreme Court Should Not Be on TV

The law, lawyers, and the court.
Sept. 17 2015 11:28 AM

The Supreme Court Has Nothing to Hide, So Don’t Look

Stephen Breyer swears the justices are just the nicest people.

Justice Stephen Breyer
Justice Stephen Breyer on The Late Show With Stephen Colbert on Sept. 14, 2015.

Courtesy of Jeffrey R. Staab/CBS

All kinds of awesome was on display this week when Justice Stephen Breyer appeared as a guest on The Late Show With Stephen Colbert—ostensibly to showcase his new book, The Court and the World. Which they didn’t get around to discussing, at all. Still, Breyer proved that he could be funny, persuasive, and accessible in ways the late night format doesn’t always reward; justices often come across as stiff and generally perplexed in the face of pop culture, and comedy generally undoes them—unless they are producing it in-house.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

But the appearance did serve to highlight the fundamental problems with justices who attempt to engage with the broader culture in the mass media. Breyer made two major arguments in his late night appearance, one about keeping cameras out of the courtroom and the other about the existence of a culture of civility among the justices. Both seem to have undermined his larger project of explaining that the court has nothing to hide and that citizens should interact with it confidently.

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Certainly, it’s unfair to hold Breyer responsible for the fact that Colbert asked puffy questions. But Breyer’s answers reflected the deeply paradoxical relationship most of the justices have with the colliding claims that they are ordinary, accessible mortals and also neutral, oracular beings. If Supreme Court justices are going to persist in engaging with the mass media as they increasingly do, they may need to answer for themselves once and for all the question of message: Is the court too special to be explained to mere mortals, or is it an ordinary workplace, just with better recliners?

The first place this tension surfaced was in Breyer’s response to Colbert’s question about why we can’t have cameras in the court’s public sessions. This is an issue the justice has thought about and testified on for years. But the gist of his answer—that Americans will misapprehend what the court actually does—has got to be one of the worst responses a justice can give in public, and a late night talk show must be about the worst place to give it.

If Breyer’s three major books, each a deep dive into educating ordinary people about the Constitution, are any indication, Breyer believes deeply—maybe more so than any of his colleagues—that laypeople need to be part of a larger constitutional dialogue with the courts and the legislative branches. His very presence on Colbert’s show was an effort to sweep more Americans into thinking about the court and the law (and the courts and laws of other countries in this instance) as something in which they have a vested interest and an absolutely personal stake.

What then, do we make of Breyer’s claim that the principal reason for banishing cameras from the Supreme Court is that laypeople will be too confused and dazzled by personalities they watch during the proceedings to fully understand what is going on? Breyer’s version of this argument holds that regular people will tend to see the two parties on the opposite sides of a case and want to pick a winner, because they cannot abstract away the conflict to more complex constitutional principles. As he put it to Colbert: “Human beings—correctly and decently—relate to people they see, and they’ll see two lawyers, and they’ll see two clients. Will they understand the whole story? Will they understand what we’re doing? Will there be distortion?”

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Well. Maybe. But if the justices really do believe that what happens in court is far too complicated for casual observers, it calls into doubt the whole write-a-book-for-laymen project. Certainly a book can explain and educate in greater detail than an oral argument—and in fairness, Breyer conceded to Colbert that one reason in favor of cameras in the Supreme Court would be a “fabulous educative process.” But if Justice Breyer and his colleagues really do want to take the position that they are not really humans, but are in fact neutral judicial ninjas, all in black, “speaking for the law,” as he explained, and are doing some kind of complicated problem-solving according to incomprehensible calculations, well, it’s awfully hard to understand why an appearance on The Late Show helps him any.

The most maddening aspect of the justices’ efforts to reach out to the man on the street is that such efforts often end in some variation of the following perfectly circular argument: Trust us, don’t be scared, we’re just like you. Except we are nothing like you. Because. Erm. You wouldn’t understand.

The problem is a long-standing institutional one; lacking either the power of the purse or the sword, the Supreme Court must rely on public perceptions of its oracular nature for its legitimacy. So when justices try to explain to us why the court shuns cameras, it comes off sounding either hopeless (“You can’t see us acting human, then you’d know we’re human!”) or patronizing (“You can’t see us acting human, we’re actually superhuman!”). Either way, it gets ugly pretty quick. This is not Breyer’s fault. He didn’t say anything to Colbert that his colleagues haven’t been saying forever.

Relatedly, the justice had a fascinating exchange with Colbert about civility and the tone of the opinions and dissents at the high court. When asked whether the justices didn’t resent some of the nasty words in written opinions, Breyer offered a line he has used in the past: that he has served on this court for 21 years and has never seen any animosity. “When we’re sitting around that table … I have never heard a voice raised in anger. I have never heard one member of our court say something insulting about another, not even as a joke. … The discussion is professional, it is serious, it is not personal, and we are good friends despite the fact that we agree some of the time and we disagree others of the time.”

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Breyer’s contention, and it’s a claim shared by all of his colleagues, is that at the end of the day the justices are friends and fellow travelers and that no matter how bitter the language in a written opinion, no harm no foul.

Maybe that’s true. I have to say I find this next to impossible to believe, given the claims of “argle-bargle,” “mummeries” and deception, and willful distortion. I was not the only court watcher who was struck by the rancor and ugliness at the close of last term. Many observers felt that the exchanges were far more personal and ad hominem than we had seen in years. It was hard not to wonder whether accusations of deliberate obfuscation, bad faith, and misreading could be brushed off under the heading “reasonable people can differ.” When you are accusing the opposition of being either stupid or a liar, it’s not really about reasonable people anymore.

Justice Ruth Bader Ginsburg mentioned in a speech this spring that a recent study measured the so-called friendliness assessment of the 107 justices from the first court to Justice Samuel Alito. As Ginsburg noted, the court is moving toward greater and greater “grumpiness,” and four sitting justices are ranked among the five “least friendly justices in history.”

Breyer’s motives in claiming that the justices are all friendly are hardly complicated: Nothing would undermine the prestige of the institution more than a return to the backbiting and whispers of earlier eras in the court’s history. But the message that people can talk to and about one another any way they wish in the workplace without personal or emotional consequences is a complicated one. Put aside the arguments advanced by University of California–Irvine law school Dean Erwin Chemerinsky and others that there are very real consequences for students and lawyers when justices liken each other’s writing to the contents of a fortune cookie (as Justice Antonin Scalia did in a dissent earlier this year). What does it say that Breyer is telling a television audience that it’s OK to write back and forth among each other like Donald Trump, because nobody at the court holds grudges? Isn’t the better answer that in the world of the law, we should not write back and forth among each other like Donald Trump?

Again, the aspiration here is the right one: Breyer was making an impassioned pitch for civility and mutual respect. But viewers are not completely naive, and they are bound to ask themselves, “Hey, how would I feel if a colleague publicly accused me of writing like garbage?” And maybe more pointedly, they might well ask themselves why any reasonable person would tolerate personal attacks in the workplace. It seems to me that at least some of Breyer’s “we’re all buddies” talk is merely self-protective. But it also tolerates, and demands that the rest of us tolerate, a discourse that is so clearly making the country ever more impoverished. And the lingering implication—that justices should tolerate this type of intramural dialogue—seems almost as pernicious as the claim that Americans can’t be fully trusted to understand the complex rulings of the court. In the strangest possible way, in the cameras context, the justices are arguing that they are just like us, even though we can’t watch them work. And in the civility context, they claim they are not at all like us because being called stupid and dishonest is all in good fun. And of course there is an inevitable link between the two ideas: Perhaps we really can’t watch them work precisely because we might just see them behaving badly.

Having to explain the workings of the court to a public that doesn’t—as Colbert pointed out—even know who Stephen Breyer is is not an enviable task. But if the court is going to reassure the American public that it is neither elitist nor out-of-touch, the justices will need to pick a horse in the old we’re special/we’re the same Kentucky Derby and ride.