In the weeks after the Supreme Court issued its decision in Bush v. Gore, on December 12, 2000, the mood was despondent in the chambers of the Justices on the losing side. The five-to-four ruling ended the recount of the Presidential vote in Florida and assured George W. Bush’s victory in the election. “The clerks were tremendously alienated,” one recalled recently. “A lot of them thought that the Court was a fraud, that the place had sacrificed its legitimacy, and that there really wasn’t much point in taking the whole institution seriously anymore.”
Stephen G. Breyer was among the dissenting Justices in the case. He was appointed to the Supreme Court by President Clinton in 1994, but his main residence is still a rambling clapboard house in Cambridge, Massachusetts, which he and his British-born wife, Joanna, bought three decades ago, early in his career as a professor at Harvard Law School. The house is on a cul-de-sac not far from Brattle Street, which has been home to the city’s gentry since the American Revolution. Breyer works in the back of the house, in a sunny, glassed-in office, surrounded by paintings and leather-bound books.
One morning a few weeks ago, Breyer, who is sixty-seven, sat in his office in a worn wing chair, relating how he had tried to reassure the clerks. “I spent a long time going to lunch with quite a few of them, to calm them down,” he said. “I told them, ‘This, too, will pass.’ ” Breyer said that the pep talks were intended to help keep the young lawyers motivated, but they also reflected his fundamentally optimistic nature. “You have to assume good faith, even on the part of people with whom you disagree,” he told me. “If you don’t assume good faith, it makes matters personal, and it makes it harder to reach a good result and, in my experience, it normally isn’t even true. People do act in good faith. The best clue to what a person thinks is what he says.”
Breyer’s confidence in the Supreme Court isn’t shared by many Democratic lawyers and judges. After his appointment, membership on the Court remained stable for eleven years—the longest period without turnover in more than a hundred and fifty years. But now John G. Roberts, Jr., has replaced William H. Rehnquist as Chief Justice, and Bush has nominated Harriet Miers, his White House counsel, to fill the seat vacated by Sandra Day O’Connor. Furthermore, Breyer’s most liberal colleagues, John Paul Stevens and Ruth Bader Ginsburg, are eighty-five and seventy-two years old, respectively. A period of conservative hegemony on the Court seems a real possibility. In April, the Harvard Law School professor and veteran Supreme Court litigator Laurence H. Tribe announced that he would not complete a new edition of his mammoth treatise on constitutional law, which was originally published in 1978, because so many precedents that had once seemed settled now appear at risk of being overruled. “I’ve suspended work on a revision because, in area after area, we find ourselves at a fork in the road . . . and because conflict over basic constitutional premises is today at a fever pitch,” Tribe wrote in a letter to Breyer, an old friend and former colleague.
http://www.newyorker.com/fact/content/articles/051031fa_fact
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