Stephen Breyer, the liberal justice who is rounding out two and a half decades on the Supreme Court, doggedly avoided saying anything remotely relevant to the scandal surrounding Brett Kavanaugh in an interview on Thursday.
Breyer’s potential future colleague has been publicly accused of sexual assault or misconduct by three women. Kavanaugh’s nomination hearings were long and contentious and constantly interrupted by protesters. The whole process has been highly politicized, leaving American voters feeling angry and divided. Breyer, however, had nothing to say about the importance of judicial independence or the effort to elevate the judiciary above partisanship.
“I’m obviously going to stay as far away as I can from any particular controversy that’s going on,” he said in an interview at The Atlantic Festival. During a particularly ugly episode in American politics, when the prospect of a fair and neutral judiciary seems quaint, if not impossible, the justice seemed committed to the pretense that Supreme Court justices remain above and separate from the political fray.
Instead, Breyer was there to talk about literary classics with his interviewer, Michael Kahn, the artistic director of the Shakespeare Theatre Company. The two reflected on works by Shakespeare, Aeschylus, and Albert Camus. When the conversation veered even slightly toward politics, Breyer happily sidestepped with abstract reflections.
For instance, Kahn asked the justice whether he was concerned about the intensity of political polarization in American society. Breyer replied with an elaborate metaphor about Agamemnon, the ancient Greek hero featured in Homer’s writings. “We’re human,” Breyer said. “Who is Hamlet? … He’s a human being who has found the tragedy of life, the difficulty of life, the human condition. We find out the truth, it doesn’t do us much good.”
Breyer went on. “There have been civil wars in America,” he said. He described the 1856 caning attack on Senator Charles Sumner of Massachusetts that took place on the Senate floor after he spoke out against slavery. The fights of our day, Breyer seemed to imply, are but mild disturbances on the surface of the vast lake of history. “There are ups and downs,” Breyer said. “We’re human.”
Meanwhile, in the legislative branch of the federal government, all hell is breaking loose on a daily basis. During the hearing last week in which Kavanaugh and his primary accuser, Christine Blasey Ford, testified, Senator Lindsey Graham called the confirmation process “the most unethical sham since I’ve been in politics.” There is no more illusion that judiciary hearings are high-minded, bipartisan attempts to “advise and consent” on Supreme Court nominations. “When you see Sotomayor and Kagan, tell them Lindsey said hello,” Graham said, referring to the associate justices Elena Kagan and Sonia Sotomayor, who were both nominated by Democratic President Barack Obama. “’Cause I voted for them.”
Perhaps Breyer thinks his duty is to avoid saying anything substantive about the institution he represents or the ideals the judiciary is supposed to stand for. Perhaps, as his comments suggest, he really does think this is one scandal among many in history, and that the Court will continue to strive toward justice. Or perhaps Kahn’s observation was correct: “I’ve found the justices to be very good actors.”