The book explored the nature of the court’s legitimacy and said it was undermined by labeling justices as conservative or liberal. Drawing a distinction between law and politics, Justice Breyer wrote that not all splits on the court were predictable and that those that were could generally be explained by differences in judicial philosophy or interpretive methods.
In an interview with The New York Times, he acknowledged that the politicians who had transformed confirmation hearings into partisan brawls held a different view, but 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 Justice Neil M. Gorsuch’s 2020 majority opinion in a ruling that a landmark civil rights law protects gay and transgender workers from workplace discrimination.
Justice Breyer was an idiosyncratic questioner on the Supreme Court bench. Lawyers appearing before the court sometimes resented his elaborate hypothetical questions, which could resemble an interior monologue with a point discernible only to him. They sometimes ended with a simple request: “Respond.”
At the same time, his questions were evidence of intense curiosity and an open mind, which often contrasted with the more strategic inquiries of his fellow justices.
In his judicial writing, Justice Breyer sometimes drew fine distinctions.
He was, for instance, the only justice in the majority both times in a pair of 2005 cases that allowed a six-foot-high Ten Commandments monument on the grounds of the Texas Capitol but held unconstitutional the posting of framed copies of the Commandments on the walls of Kentucky courthouses. A conservative bloc of justices would have upheld both kinds of displays, while a liberal bloc would have required their removal.
Justice Breyer wrote the majority opinion in 2000 in Stenberg v. Carhart, a 5-to-4 decision that struck down a Nebraska law banning a procedure that its opponents called partial-birth abortion.
He was characteristically balanced in presenting the clash of values.
“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it,” he wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”