A Surprise at the Federalist Society Gala: Justice Breyer, a Retired Liberal

The conservative legal group’s annual dinner featured a conversation between Justices Stephen G. Breyer and Neil M. Gorsuch, a conservative. Both stressed the importance of an independent judiciary.

Neil M. Gorsuch and the retired Justice Stephen G. Breyer sitting in chairs and holding microphones, with a Federalist Society logo hanging between them.

Justice Neil M. Gorsuch and the retired Justice Stephen G. Breyer delivered a message that the court is a collegial body.Credit...Tierney L. Cross for The New York Times

Adam Liptak

By Adam Liptak

Reporting from Washington

Nov. 15, 2024, 12:01 a.m. ET

The glittering annual gala dinner of the Federalist Society, the conservative legal group, usually celebrates the justices its members helped place on the Supreme Court. Last year, for instance, the headliner was Justice Amy Coney Barrett, whose appointment in 2020 by President Donald J. Trump created a six-member conservative supermajority.

The other two members of the court named by Mr. Trump — Justices Neil M. Gorsuch and Brett M. Kavanaugh — were the keynote speakers in earlier years, and two other conservatives, Justices Clarence Thomas and Samuel A. Alito Jr., have also addressed the group.

On Thursday night, a little more than a week after Mr. Trump’s election to a second term, the group did something different, hosting a conversation between Justices Gorsuch and Stephen G. Breyer, a liberal who retired in 2022.

The identities of the dinner speakers had not been publicized, and they were greeted by a standing ovation in an enormous, packed hotel ballroom. The two justices sat in big armchairs and were in high spirits.

Their collective message was that the court is a collegial body whose independence must be protected. The court’s approval ratings dropped sharply after its 2022 decision overruling Roe v. Wade and following reporting on some justices’ failures to disclose luxury travel and gifts. Critics called for ethics rules with an enforcement mechanism, term limits and increasing the court’s membership.

The two justices addressed none of those issues directly on Thursday, but the subtext of their remarks was that some such proposals were misguided.

“That court is a serious court,” Justice Breyer said. “I don’t always agree with every opinion they write. Nor does anybody. Nor should anybody.”

While criticism of the court was fine, he added, “the institution has to be independent.”

“Do you want the judge looking over his shoulder for public opinion?" he went on. “Of course, the answer is no.”

Justice Gorsuch, for his part, praised his colleague for being “a fierce defender of our independent judiciary.”

Justice Gorsuch said he and Justice Breyer had not always seen eye to eye. “Sometimes, of course, we disagreed,” he said, “but it was never a disagreeable task.”

Prompted by Justice Gorsuch, Justice Breyer spoke at length about his experiences as a young lawyer working on airline deregulation.

“I try to make the Supreme Court accessible to readers. I strive to distill and translate complex legal materials into accessible prose, while presenting fairly the arguments of both sides and remaining alert to the political context and practical consequences of the court’s work.”

Justice Gorsuch recently published a book called “Over Ruled: The Human Toll of Too Much Law,” written with Janie Nitze, a former law clerk. His thesis, he said on Thursday, was that there were “too many cases in which ordinary Americans have just been swallowed up trying to live their lives without harming anybody.”

Justice Breyer’s work and his own, Justice Gorsuch said, were part of “the history of remarkable bipartisan efforts in regulatory reform.”

In March, Justice Breyer published his own book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism.” It was partly aimed, he said in an interview at the time, at persuading some of his younger former colleagues to abandon their commitments to interpretive methodologies generally associated with conservatives.

“Recently,” he wrote, “major cases have come before the court while several new justices have spent only two or three years at the court. 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.”

He added that “they may well be concerned about the decline in trust in the court — as shown by public opinion polls.”

Judging by Thursday’s conversation, Justice Breyer has not made much progress. Justice Gorsuch repeatedly referred to himself as a textualist, meaning a judge committed to following the literal language of statutes whatever their apparent purpose.

Two other members of the book’s intended audience, Justices Kavanaugh and Barrett, were also in the ballroom Thursday night. There is little evidence that they have changed their minds, either.

Justice Breyer, 86, has long insisted that politics played no role in the court’s work, devoting a 2021 book, “The Authority of the Court and the Peril of Politics,” to the subject.

In an interview at the time, he said the justices acted in good faith, often finding consensus and occasionally surprising the public in significant cases.

“Didn’t one of the most conservative — quote — members join with the others in the gay rights case?” he asked in the interview, referring to a majority opinion by Justice Gorsuch ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.

Justice Breyer, who was appointed in 1994 by President Bill Clinton, stepped down a little reluctantly, under pressure from liberals who wanted to make sure that President Biden could appoint his successor and that the conservative majority on the court would not get any more lopsided. Justice Ketanji Brown Jackson, a former law clerk to the justice, now occupies his seat.

Justice Gorsuch was appointed in 2017 to fill the seat left vacant by the death of Justice Antonin Scalia in February of the previous year. Senate Republicans had held the seat open for almost a year, refusing to consider President Barack Obama’s nomination of Merrick B. Garland, who is now attorney general.

(http://www.autoadmit.com/thread.php?thread_id=5634830&forum_id=2Reputation#48341949)