Lawyers ‘have to stand up and say something,’ Breyer tells ABA assembly
Former U.S. Supreme Court Justice Stephen Breyer plans to spend his retirement teaching seminars at Harvard Law School; writing a book about what he has learned during his long career as a lawyer and jurist; and encouraging high school students to become more active in their government.
But Breyer also intends to help people better understand and support the rule of law as the incoming chair of the ABA Rule of Law Initiative Board. In this role, he will oversee the 20-member board and five regional councils that guide the direction of ROLI, which has promoted “justice, economic opportunity and human dignity through the rule of law” in 130 countries for more than 30 years.
“They are people who will be able to convince their neighbors and talk to their friends in countries across the world of why it is that we in our little village or town should support a rule of law that means we will sometimes see the law take a shape that we don’t like,” Breyer said in an interview with the ABA Journal. “We may be against it. The other person may win. But still, we support it. Why? The people who can explain that best are lawyers, judges and others with experience.
“Many of them are in the United States, and many of them can tell stories to their counterparts in other places about how the United States took centuries to reach a stage where the rule of law has the importance it has. The rule of law will not save the world from the evil portions of human nature, but it can help.”
‘A very valuable use of my time’
Breyer, who retired from the Supreme Court in late June and was replaced by Judge Ketanji Brown Jackson, has served as a special advisor to the ROLI Board. He begins his new role at the close of the 2022 ABA Annual Meeting in Chicago.
Breyer adds that concerns about the rule of law in the United States and around the world can be addressed by continuing to emphasize to younger generations the importance of appreciating and accepting different points of view.
“Given the problems of the world and how the world has shrunk, how everybody is connected with everybody—which is good, but it can also be bad—I think it is important that many if not all of those people understood the virtues of the rule of law,” Breyer says. “This is a well-functioning organization that is well on the road to doing that and is doing the best they can. No one can do anything more but try, [and] here they are trying. To be part of that and to spend even a little time helping that, I think is a very valuable use of my time.”
The highest honor
Breyer attended the ABA Annual Meeting on Saturday to accept the ABA Medal, the association’s highest honor.
An ABA member since 1988, Breyer said during his remarks to the General Assembly that a fellow professor at Harvard Law School encouraged him to get involved. He was active in the Section of Administrative Law & Regulatory Practice until then-President Bill Clinton appointed him to the Supreme Court in 1994.
He referred to several reasons why it remains important for lawyers and other legal professionals to participate in the association and attend its meetings. One of them, he said, is because the ABA “is an important part of and at the heart of the law itself in America.”
Breyer explained that after courts issue opinions, law professors read, analyze and criticize them. Then, he said, lawyers read the opinions and academic research to achieve the best outcomes for their clients. In coming back to the courts, lawyers give judges a better understanding of what they’ve done and whether they should adjust their decisions.
“And so, you have a growing body of doctrine in most places, which we hope, as Martin Luther King said, ‘arcs toward justice,’” Breyer said. “It doesn’t always, but we hope. And those parts of the profession working together, I think, in general do reach in that direction at least some of the time. And where it doesn’t, we try to make it do it more.”
‘Stand up and say something’
Breyer also shared the story of a leader of the Supreme Court of Ghana who once asked him: “Why do people do what you say?” He told her what Harry Reid, a former Democratic Senate leader from Nevada, said after the Supreme Court’s 2000 decision in Bush v. Gore, which effectively cemented Republican candidate George W. Bush’s victory over Democratic candidate Al Gore.
“I didn’t agree with Bush v. Gore, I dissented, and what Reid said was, ‘You know, the rule of law, maybe you have it when you are prepared—or enough people are prepared—to accept an opinion that affects them personally, but they don’t like the way it affects them. And by the way, maybe it’s wrong,’” Breyer said. “That describes quite a few [opinions].”
But, Breyer added, because the rule of law is respected in the United States, “there were no stones thrown in the streets, there were no rocket attacks, there was no beating people up” over the decision. To ensure this continues in this country, he stressed that it is up to lawyers to maintain a strong legal system.
“It means the lawyers in this organization as well as others have to stand up and say something when they think something is against the rule of law,” Breyer said. “Because that’s what they’re about.”
The ABA also recognized U.S. Sens. Dick Durbin, D-Ill., and John Cornyn, R-Texas, for their lifetime legislative achievements at the General Assembly on Saturday. Due to a vote on a landmark climate, tax and health bill, they were unable to attend in person and accepted their awards virtually.