This post provides excerpts from an op-ed by Neal Katyal, one of Supreme Court Justice Stephen Breyer’s former clerks. Mr. Katyal describes Justice Breyer’s humility, recognition of his own biases, and openness to considering others’ points of view.
There was, in short, a constitutional humility about Breyer. He didn’t pretend to know the answer to every question. He paid attention to what the other side was saying, and was charitable in listening instead of impugning motives.
But that wasn’t where his listening stopped. A deep part of his listening practice was to pay attention to experts in the field. He often said federal judges are not experts on national security, or the environment, or the economy, and that a deep part of wisdom was deference to expertise. Breyer’s path was to triple check his personal impulses, and particularly so if they conflicted with the views of true experts on the question before him.
Consider just how different that is from the political debates today, where extremist ideology has attacked things that should be noncontroversial, from wearing masks to taking vaccines, from addressing global warming to protecting voting rights.
America stands at a crossroads. On one path is more toxic extremism, the culmination of which we witnessed on Jan. 6. Despite that armed insurrection, the path remains just as seductive as ever to many.
The other path is quieter and more difficult to practice. It is a path forged by Breyer: respect for others, reverence for the law, and most of all, a commitment to listening to and learning from one another.
These days, this approach is needed more than ever. This is not to imply a false equivalence as if all protagonists in our political and legal controversies equally fail to follow these principles. I do not believe that is the case. Even so, I think that our society would benefit if everyone adopted this approach, which is at the heart of our dispute resolution movement.
Here’s an appreciation of Justice Breyer by Dean Erwin Chemerinsky. He wrote, “Justice Breyer, on the bench and in person, was always courteous to everyone. His opinions never resorted to the sarcasm and invective that some other justices have come to use. In this way, and so many others, he is a model for all who sit on a judicial bench.”