Former U.S. Supreme Court Justice Stephen Breyer suggested that marriage equality is safe, despite the high court’s recent overturn of the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization.
Breyer’s Oct. 19 conversation at Harvard Kennedy School with Nancy Gibbs, the former Editor-in-Chief of TIME and director of the Shorenstein Center on Media, Politics and Public Policy, and Daphna Renan, a professor at Harvard Law School, was one of the first public talks he’s given since he left the Supreme Court in June, after serving as Justice for nearly 30 years. The conversation repeatedly turned to the consequences of Dobbs, how it was decided, and how it may have weakened public faith in the court.
Gibbs asked Breyer how much faith he has in the majority’s assurances in Dobbs that “things like marriage equality are safe.”
In his majority opinion, Justice Samuel Alito wrote that nothing in the Supreme Court’s opinion should “cast doubt” on any other precedents that don’t concern abortion. But in a separate concurrence, Justice Clarence Thomas argued that all rights on similar legal footing rooted in the Constitution’s Due Process Clause should be revisited, explicitly naming the rights to contraception, same-sex consensual relations, and same-sex marriage.
In response, Breyer gave a hypothetical example in which he argued with someone who believes allowing access to abortion effectively sanctions murder, while he believes people should have the right to chose whether to pursue the procedure. “If you read the [Dobbs] opinion that way—and I’m not saying you should, I’m not taking a view of how to read the opinion—you might also think that what they’re saying is that where you have a country where people believe both [arguments], it should not be decided who’s going to prevail, either through Breyer’s system, which is give a woman her choice… nor should should the court decide,” he continued. “We should decide at the ballot box.”
“I’m being a little complicated because I don’t want you to get the idea that I’m quoting one of my colleagues, or thinking about what they think,” he continued. “But if you think that is the approach of the majority, it has very little to do, very little to do with marriage and the case you’re thinking of, and contraception and gay rights and so forth.”
“So we both have a theory that puts [those issues] over here, and says this case doesn’t have much to do with them,” he said. “And we have a writing in the majority in this case, which says this case does not stand for anything outside the area of abortion.”
During the hour-long talk, Breyer also argued against the jurisprudence of originalism that some of his conservative former colleagues practice, which interprets legal texts based on the original public meaning they would have had at the time they were written. He also affirmed his support for imposing term limits on Supreme Court Justices, which progressives have called for in recent years in an effort to reform the bench.
“It would have to be a very long term… 20 years, something like that,” he said. “You don’t want someone in that job to be thinking about what is my next job.”
Democrats have introduced bills in the House and the Senate that would impose term limits on Justices, but they have not advanced. In 2021, President Joe Biden established a commission of legal experts to provide analysis of several reform efforts, including imposing term limits as well as expanding the number of seats on the bench, but the panel ultimately did not take a position on either issue.
In their Wednesday discussion, Gibbs also raised the Supreme Court’s dismal public approval rating, pointing out that a June Gallup poll found that only 25% of the American public has confidence in the court. She asked the former Justice if he thinks Chief Justice John Roberts has failed in his mission to preserve the court as an institution.
“No, because we don’t know what will happen,” Breyer responded, citing previous tumultuous times in U.S. history, like the Vietnam War. “We [as a country] have gone through a lot of difficult periods. And despite these difficulties, the country has emerged,” he said. “So naturally, I think it will emerge.”
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