We are all Justice Breyer.
And not in the way that the French express solidarity during demonstrations. (“Nous sommes tous Charlie Hebdo.”) Most of us harbor the same blinkered self-regard that puts our personal well-being way above the public good, be it Breyer, who turns 83 on Sunday and is clinging to a Supreme Court seat in defiance of actuarial charts and precedent (let’s see, who replaced Ruth Bader Ginsburg?), or Pasadena homeowners watering the hydrangeas in defiance of the wildfires burning down the rest of the West.
Or any of us driving S.U.V.’s, fracking, ordering avocado toast, moving to Florida, buying plastic shampoo bottles, or building beach houses the size of France. When human nature prevents us from coming to the rescue of nature itself, it’s hard to shame anyone into making a sacrifice for the common good.
Governor Andrew Cuomo did finally “step aside” this week, but it took a 168-page investigation by the attorney general of New York, which concluded that Cuomo sexually harassed multiple women and violated state law, to get him there.
Poor Breyer has not been accused of wrongdoing, just of not doing the right thing. For months, David Plotz, one of the hosts of Slate’s Political Gabfest, kept up a running gag about Justice Breyer, positing the fun things Breyer did after he stepped down from the Court. Here’s one from April 2021: “But this week’s nude-male drawing class, the model was former justice Breyer. Can you believe he stayed on a little bit after class to talk to us, and he said he’d always wanted to model? And now that he’s off the Court, he finally has time to do it. It was really sweet, and he was a really good model.”
As recently as July, Breyer told CNN he hadn’t decided whether he would retire anytime soon. Yet the danger doesn’t begin in November 2022; it’s a Sword of Damocles hovering over us right now. In at least six states, if a Democratic senator were to die, his replacement would be appointed by a Republican governor. And here are just some of the things at stake if the Republicans win the midterms and the Supreme Court staggers even further to the right: abortion, gun control, voting rights, unions, civil rights, government regulation—Wall Street, the tech industry, and campaign financing could all use more adult supervision—health care, education, science, and, most terrifying of all, the survival of the planet.
When human nature prevents us from coming to the rescue of nature itself, it’s hard to shame anyone into making a sacrifice for the common good.
One can see why Breyer is resisting pressure from Democrats to retire. Until recently, Breyer on the bench was like Doc of the Seven Dwarfs—the Supreme Court justice whose name most people struggled to remember. Now, with so many conservatives on the bench, he’s clearly enjoying his prominence as the senior liberal. But popular culture isn’t sharing his glee. There are no Stephen Breyer biopics, nobody is selling Notorious SGB T-shirts, and Ben & Jerry’s does not yet have a Breyer’s ice cream—though you can see how that would be awkward.
When Breyer said “health” would be a determinant, he certainly didn’t mean the health of the nation; he meant his own. He also said he didn’t want politics to influence his decision, which is like an aging hedge-fund manager saying he dates women 30 years younger because age discrimination is against the law.
As a justice, Breyer knows that decisions—and indecisions—have consequences. What if Colin Powell had resigned from George W. Bush’s Cabinet in protest over the president’s plan to invade Iraq? If Powell had stood up and spoken his mind (he knew better), support for the war might have crumbled. We might even have avoided the trap we face right now: on the eve of the 20th anniversary of the September 11 attacks, we watch helplessly as the Taliban marches for Kabul.
He also said he didn’t want politics to influence his decision, which is like an aging hedge-fund manager saying he dates women 30 years younger because age discrimination is against the law.
Is it fair to compare Justice Breyer (and the rest of us) unfavorably to anti-vaxxers, whose selfish denialism in refusing the coronavirus vaccine doesn’t help them in any real way and only hurts society at large? The anti-vaxxers are endangering others, but they are also pushing themselves and their movement closer to extinction, like an ungodly version of the 19th-century Shakers. However heedless, true-believing anti-vaxxers have less to gain by ignoring the cost to others.
So, sure it’s fair: Breyer and the rest of us want to support progressive values without giving up our own valuables: few among us are willing to take a hit for the common good. Like Breyer, we seem to think we can be the exception and let others pay more taxes, give up tenure, turn lawns into native gardens, take a bus or train instead of a jet, stop using plastic, ration meat, forgo yachts, and pay teachers as well as we do investment bankers—both jobs, after all, require dealing with children.
With Justice Breyer’s birthday tomorrow, we don’t have a lot of hope that he will do the right thing. We can only hope that we will—once again—be wrong. We have a pretty good track record. Just about everyone, including the super-smart Ruth Bader Ginsburg, thought Hillary Clinton would win in 2016. Plenty of us didn’t think Joe Biden could win the 2020 Democratic nomination. And only the nuttiest of us imagined that when Donald Trump swore that the election results would be tampered with, he would actually attempt a coup to make it so.
We will bet money that Breyer stays on the Court for as long as he can. If we’re wrong, hallelujah—the financial loss is a small price to pay. If we are right, that’s bad news for the fate of the nation and the world. On the other hand, we at least can console ourselves with a gambling windfall. Why not? It’s the kind of solipsistic calculation that got us to where we are today: on the verge of disaster.
Well, happy birthday, Justice Breyer. And this time, it’s après vous, le déluge—literally.
Alessandra Stanley is a Co-Editor of Air Mail