When Justice Stephen Breyer announced his retirement from the Supreme Court, he gave what at first glance seemed to be an unusual speech. He appeared to be addressing his remarks to high school students, grammar school students, college students, and law school students. However, he had the entire country in mind. It was a brilliant way of giving musar to everyone indirectly. In addition, he said it with a smile and a tone that was pleasant, not condescending or lecturing. We can learn from Justice Breyer how to give constructive criticism.
After mentioning the diversity and different ideas in the country, Justice Breyer stated, “…they’ve decided to help solve their major differences under law. And when the students get too cynical, I say, go look at what happens in countries that don’t do that. And that’s there; I can’t take this around in my job. People have come to accept this Constitution [which he took out of his pocket and held up] and they’ve come to accept the importance of a rule of law.”
He was talking to two groups: some progressives and those Trumpians who believe there was fraud in the election and Trump won it. Both groups have their problems with the judiciary. The progressives believe that the Supreme Court has become too conservative and are ruling against parties they support. The election result deniers are upset that every court, whether it was a state court in various states or federal court, ruled against any claim made by them except for an inconsequential ruling in one court in Pennsylvania.
Both groups have something in common: They keep losing, are upset about it, and want to do something to change the system. The progressives want to stack the Supreme Court with Justices who agree with them, so they support expanding the number of Justices on the Supreme Court. The Trump election deniers want to ignore court rulings pretending that they don’t exist. It is another way of delegitimizing the courts, aka rule of law.
There was a third group that Justice Breyer was speaking to. It is the group that I and the majority of Americans fall into. We neither believe that the election was stolen nor that the Supreme Court should be expanded.
Justice Breyer kept on getting back to the theme that American democracy is an experiment. He quoted letters from George Washington, stating, “Even the liberals in Europe, you know, they’re looking over here, and they’re saying that great idea in principle, but it’ll never work. But we’ll show them it does.” He also cited from Lincoln’s Gettysburg Address: “And we are now engaged in a great civil war to determine whether that nation or any nation so conceived and so dedicated, can long endure.”
Justice Breyer concluded: “You know who will see whether that experiment works? It’s you, my friend. It’s you mister high school student. It’s you, mister college student, it’s you mister law school students. It’s us, but it’s you. It’s that next generation and the one after that. My grandchildren and their children. They’ll determine whether the experiment still works. And of course, I am an optimist, and I’m pretty sure it will.”
Justice Breyer was telling us that we should not gloss over the threat that exists today by various groups that attack the rule of law. One should not assume that since the country has been able to weather challenges for more than 245 years it will surely overcome the attacks against its institutions today. We must be vigilant and stand up for the rule of law and against those such as election deniers or the progressives who want to stack the court. For those groups, the concept of the rule of law means that the law must rule in their favor.
In every litigation that does not settle, there is going to be a winner and a loser. No one likes to lose, whether it is a party or their attorney. There have been decisions where I felt that the court was wrong. However, since this country is based on a rule of law as determined by the courts, we must accept their decisions. As Justice Breyer pointed out, “…go look at what happens to countries that don’t do that.”
Warren S. Hecht is a local attorney. He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it.
