Justice Breyer Roasted In Devastatingly Honest Book Review

(Photo by Chip Somodevilla/Getty Images)

In lieu of retiring — which would be the pragmatic thing to do — Justice Breyer is putting the finishing touches on a new book. Having fun celebrated his 27th anniversary on the Supreme Court earlier this month, the 83-year-old will soon release The Authority of the Court and the Peril of Politics (affiliate link), which endeavors to scold readers for suggesting that the Supreme Court has become a political organ and caution against any effort at reform that “could undermine both the Court and the constitutional system of checks and balances that depends on it.”

Because the Framers obviously intended 83-year-olds to cling to unelected power for over a quarter century.

Having, as Hamilton observed, “no influence over either the sword or the purse,” the Court earned its authority by making decisions that have, over time, increased the public’s trust. If public trust is now in decline, one part of the solution is to promote better understandings of how the judiciary actually works: how judges adhere to their oaths and how they try to avoid considerations of politics and popularity.

How can this guy possibly square this thesis with the reality we see at the Court these days? Well, according to Professor Mark Graber of the University of Maryland’s Carey School of Law, the justice just… doesn’t. In an open review posted on Balkinization, Professor Graber systematically breaks down Breyer’s manuscript and to say the professor finds it lacking would be an understatement:

Big things often come in small packages, but this is a case of what you see (if microscopically) is what you get. Consider the author’s query on p. 16, “Where then lies the power of the Supreme Court.” One would hardly know from what follows and certainly not from the lack of the footnotes that there is an extensive literature on this subject. The general conclusion most scholars have reached is that courts have power because crucial governing elites want courts to have power. Courts articulate the values of the governing regime, they bring those values into the hinterlands, and they resolve political hot potatoes when many governing officials would rather avoid responsibility for making controversial policies. I might cite such scholars as Ran Hirschl, Howard Gillman, Leslie Goldstein, Terri Peretti, and Tom Ginsburg for that proposition, or important variations on that theme…. Justice Breyer neither explains why this literature is wrong nor bothers to inform the reader that this literature exists.

The addiction legal academia has to footnoted citations stretches the bounds of good taste, but there’s a big difference between mucking up a coherent argument with multiple footnotes per sentence and deploying around 25 footnotes over the course of 100 pages, which is what Justice Breyer’s manuscript does. Especially when advancing an argument that’s so difficult to take seriously on its face.

Justice Breyer shortly thereafter seemingly begins to explore whether “the Court had actually played a major role in ending segregation” (25). This, as political scientists and historians are taught in graduate school, is a major controversy with Gerald Rosenberg’s The Hollow Hope laying down a challenge that has never been fully answered to demonstrate powerful political effects from the judicial decision in Brown v. Board of Education (1954). Breyer as is his wont, engages with none of this literature. Instead, without citing any evidence he states, the court “played an essential role in ending legal segregation,” that the Court [with other political actors]… won a majority victory for constitutional law, for equality, and above all for justice itself,” and that the decision “helped to promote respect for the Court and increased its authority.” (26) Breyer concludes “I cannot prove this assertion. But I fervently believe it.” (26)

“I cannot prove this assertion but I fervently believe it,” encapsulates exactly why the public doesn’t have much faith in the Supreme Court as an apolitical actor. Spicing up a book on the neutrality of the Court with “despite any evidence to the contrary, my core beliefs tell me we’re doing good work” ranks as an all-time self-own.

This is just the cautious liberal side of Justice Alito’s naked partisanship. Even if you don’t buy the hollow hope argument and adopt the most saccharine view of crusading justice, it’s a disservice to Brown v. Board to reduce its defense to, “I dunno, but I fervently believe it was done right.” Like, there’s an argument to be had that Brown offers a symbolic break with the past that cannot be measured solely by the lived history of de facto segregation reintroducing itself. Just offer something to acknowledge the well-developed arguments here.

Maybe it’s good news for Justice Breyer that wingnuts are trying to ban critical race theory so he never has to read some of the more prominent critiques of the opinion.

If this is the standard of publication for Harvard University Press, please expect a manuscript from me demonstrating that the New York Giants will win the Super Bowl (needs a fast turnaround), that the Sicilian Dragon is playable in top chess tournaments, and that Mahler 2 is the most sublime symphony ever written, none of which I can prove, but all of which I fervently believe.

Funny, but no one fervently believes the Giants will win the Super Bowl.

Still, the book does demonstrate a good deal of native talent. If submitted as part of an application, I believe any major graduate program in political science would be happy to take Justice Breyer on as a student. The University of Texas comes to mind, as does Princeton. Julie Novkov runs an underappreciated program in SUNY, Albany. Justice Amy Coney Barrett, who I fear has a book of similar quality forthcoming, might consider joining Justice Breyer. Still, The Authority of the Court is likely to be converted into a successful dissertation and major university press book only if Breyer is willing to put in the time necessary to do the research. The solution is simple. Harvard should withdraw the book from publication, insist that Justice Breyer if he wishes to continue publishing university press books, as I believe a person of his intelligence and talent should, enter a leading graduate program, study with a distinguished political scientist and forego all other employment that distracts from this worthy endeavor.

Perhaps we’ve underestimated Breyer and he’s just sticking around because he doesn’t know what he’d do with retirement. It seems like this might be a fun new chapter!

A “Review” of Justice Breyer’s “Manuscript” [Balkinization]


HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.

Masa Son Cancels Future Performances In China

Masayoshi Son is a bold, daring man, unafraid to take big, seemingly reckless risks no matter how often he’s been burned by them. It is the SoftBank chief’s nature, and he cannot resist the urge for long—and his favorite place to scratch that itch is China’s tech industry.

Morning Docket: 08.16.21

Image by Getty

* Not a joke: Taliban took Kabul over the weekend. Check this out to catch up. [CNN]

* Officer facing jail time for not restraining an assault suspect that later kicked a man in the head. [Baltimore Sun]

* SCOTUS upholds University’s COVID mandate. Cheers to treating this more like measles shots and less like an affront to liberty. [Jurist]

* Legal Tiktok trolls anonymous no more? Fear the Great Londini. [Insider]

* Autopilot Emergency: Teslas keep crashing into parked emergency cars for some reason. [Irish Examiner]


Chris Williams became a social media manager and assistant editor for Above the Law in June 2021. Prior to joining the staff, he moonlighted as a minor Memelord™ in the Facebook group Law School Memes for Edgy T14s. Before that, he wrote columns for an online magazine named The Muse Collaborative under the pen name Knehmo. He endured the great state of Missouri long enough to graduate from Washington University in St. Louis School of Law. He is a former boatbuilder who cannot swim, a published author on critical race theory, philosophy, and humor, and has a love for cycling that occasionally annoys his peers. You can reach him by email at cwilliams@abovethelaw.com.

Email Trouble — See Also

Bonuses Are Way Down For General Counsel

Ed. Note: Welcome to our daily feature Trivia Question of the Day!

According to the 2021 General Counsel Compensation Report, by what percentage is the median GC bonus down?

Hint: As Deborah Ben-Canaan, senior practice leader for in-house counsel recruiting at Major, Lindsey & Africa, said, “Bonuses tend to be based, in part, on a company’s performance, which is why I think there was a decrease on the bonus side. That’s a more discretionary part of the pay package.”

See the answer on the next page.

Enter your email address to sign up for ATL’s Bonus & Salary Increase Alerts.

Writing And Multitasking

I confess that I am not as good as I should be at following the lessons of the inefficiency of multitasking. It’s now well-known that switching quickly between tasks usually wastes time and effort as your brain gets dragged down by switching between tasks but tricks itself into thinking it’s doing better than it is. Still, though, it’s often necessary to jam together tasks due to simple scheduling, as you wait on others to return work; work around calls and Zooms; and deal with other practical realities. And in many cases, particularly if you’re just switching between emails and calls, any efficiency loss is probably outweighed by the scheduling benefits, meaning you get more done in the end.

But while switching through calls and emails on a topic is one thing, I find that falls apart if I try to switch between substantive writing and other things. It’s probably something about the difference between slow and quick thinking, but whatever it is, I find the switching doesn’t work. Good writing usually means having to sit down and get deep into thinking about a subject. And on the other side, once you get into writing, the thoughts tend to start flowing. Trying to switch back and forth turns into a real mess. On the one hand you’re not writing as quickly as you could because you’re distracted by other things, and, on the other, you’re not doing those remaining things well because you inevitably have thoughts about the writing bouncing through your head.

When writing, then, it’s best to plan and separate out your time for writing and your time for doing other things. That way, you can best make use of your time and energy and get both your best writing done and deal with the rest of what you may have to do. Setting boundaries is important to make this work: you should plan to make sure that you set aside time to write without interruption, and then hold yourself to that time. Otherwise, if you ignore the schedule, you’ll miss the point and end up multitasking whether you intended to or not.

So, start this coming week by planning and setting ahead time for your writing and stick to it. With discipline, you can improve your efficiency, get more done, and get better writing done to boot.


Matthew W Schmidt Balestriere FarielloMatthew W. Schmidt has represented and counseled clients at all stages of litigation and in numerous matters including insider trading, fiduciary duty, antitrust law, and civil RICO. He is a partner at the trial and investigations law firm Balestriere Fariello in New York, where he and his colleagues represent domestic and international clients in litigation, arbitration, appeals, and investigations. You can reach him by email at matthew.w.schmidt@balestrierefariello.com.

U.S. Chamber Of Commerce Paying People $2,000 To Pretend Binding Arbitration Is Good

(Photo via Getty Images)

For years, AT&T worked tirelessly to erode its customers’ legal rights, using mouse print in its terms of service preventing consumers from participating in lawsuits against the company. Instead, customers were forced into binding arbitration, where arbitrators, chosen and paid by the companies under fire, unsurprisingly rule in favor of companies more often than not. Initially, the lower courts derided this anti-consumer behavior for what it was, noting that however brutally flawed the class action is, binding arbitration, at least the way we let companies design it, in many ways made things worse.

But these lower court roadblocks quickly evaporated when the Supreme Court ruled in 2011 (Mobility v. Concepcion) that what AT&T was doing was perfectly OK. While lower courts saw this as an “unconscionable” abuse of consumer rights and the law, the Supreme Court bought into the ongoing myth that binding arbitration is a hyper-efficient, modern alternative to class actions. In reality, it shifted things to a form of binding arbitration that was costly, lopsided, and cumbersome for consumers, and less transparent for those used to visiting Pacer to dig up legal histories.

Fast forward to a few years ago, when a growing number of companies and services (like Fairshake) began streamlining the arbitration process, making it easier and less expensive for consumers (and yeah, class action lawyers). This shifted the balance of power back toward consumers, and starting in 2018 or so companies like Uber, AT&T and Comcast began to complain they were being swamped with arbitration feuds.

So now we’re seeing another sea change. Now, even giants like Amazon are being forced to take consumer complaints back to the courtroom, in part because a system they constructed to dodge accountability is no longer helping them do that.

At the same time, company lobbyists are firing up their opposition to the Forced Arbitration Injustice Repeal (FAIR) Act, which would (as the name implies) prohibit the practice in several sectors. The bill has already passed the House, and to prevent it from passing in the Senate companies have been cultivating phony “grass roots” astroturfed opposition to the bill. That usually involves using some proxy org (in this case the U.S. Chamber of Commerce) to throw money at people to write (or just support) op-eds in papers around the country insisting how wonderful binding arbitration is:

“The pro-arbitration op-ed was already written and included in the body of the email. The op-ed calls arbitration “a relatively cheap and fast process” in a “much more relaxed” environment than a courtroom, which “could soon be eliminated if plaintiffs’ lawyers have their way.” The last line makes its objective clear: “Arizona’s workers and consumers can’t afford for Senators Sinema and [Mark] Kelly to allow [the FAIR Act] to happen.”

As with most campaigns of this kind (they’re pretty common in telecom), it involves reaching out to credible people to see if they’d willing to sell their principles downstream for some cash:

“Late last week, David Chami, an Arizona attorney who specializes in consumer protection, received an email from Drew Johnson, who identified himself as working with the U.S. Chamber of Commerce. Johnson offered Chami $2,000 if he could get one of his clients to sign their name to an op-ed opposing the Forced Arbitration Injustice Repeal (FAIR) Act, a bill in Congress.”

You know you have a sound argument when you have to pay people to support it. There’s so much valid disdain against the class action process (which usually provides lawyers a new boat and plaintiffs a $20 gift certificate to Arby’s if they’re lucky), it’s not hard to lean on that to nab support for binding arbitration. But that in and of itself doesn’t mean binding arbitration is good.

While conceptually the idea of binding arbitration isn’t terrible, the way it has been implemented in the United States is an incomprehensible mess. It reduces the chance of a fair hearing of consumer grievances and makes it as annoying as possible for consumers to challenge corporate power. That’s why surveys tend to suggest broad, bipartisan support for eliminating the practice. Yeah, the traditional class action system is also a hot mess. But replacing it with something less effective and more annoying was never quite the solution many companies pretended it was. And now that awareness of this fact is growing, they’re getting a bit nervous.

U.S. Chamber Of Commerce Paying People $2,000 To Pretend Binding Arbitration Is Good

More Law-Related Stories From Techdirt:

DOJ Announces Investigation Of Phoenix PD’s Use Of Excessive Force And Abuse Of Homeless People
Shiva Ayyadurai Drops His Potentially Interesting Lawsuit About Massachusetts Officials Complaining To Twitter About Tweets
Judge Orders FBI To Return $57,000 Seized From A US Private Vaults’ Customer Since It Apparently Can’t Justify Keeping It

Family Office General Counsel

We at Kinney Recruiting are excited to be working on an exclusive basis to fill a position for general counsel of a family office, to be based in New York, San Francisco, or Miami.

If you have at least several years of experience handling VC or private equity deals at a top law firm (probably 4-6 years), VC firm, private equity firm, or family office, as well as strong interpersonal and communication skills, a team-play orientation, and comfort working in matters that are new to you, this could be a great fit.

This is the first GC hired and this family office is currently doing four deals per week or more. The pace will be fast – the hours will be manageable, but it will not be a “lifestyle” job. You should expect to be in direct and constant contact with the client, who is an outstanding gentleman, and to be a problem solver on many levels.

Pay will be commensurate with experience, but this has the potential to be a very lucrative role over time. If you’re interested and think you’d be a fit for these criteria, please send us an email to jobs@kinneyrecruiting.com with a resume and tell us in confidence about your interest. We’d be happy to discuss!

Alan Dershowitz Beams In To Pillowpallooza To Talk Sh*t About The First Amendment

(Photo by John Lamparski/Getty Images for Hulu)

Yesterday Alan Dershowitz made a guest appearance at Mike Lindell’s cyber symposium to explain to tens of thousands of people assembled online and in-person how his client is being censored.

Isn’t it ironic, doncha think?

Introducing himself as “a liberal Democrat who cares more about the First Amendment than I do about partisan politics,” the famed Harvard professor launched into a broadside against “censorship,” which is the new “McCarthyism” by the left.

“We can’t have free speech for me but not for thee, and the opinion yesterday, I believe, does considerable damage to freedom of speech,” he said, referring to yesterday’s order by US District Judge Carl John Nichols allowing the defamation suit by Dominion Voting Systems against Lindell, Sidney Powell, and Rudy Giuliani to go forward.

“If you can’t express opinions about a presidential election where tens of millions of people disagree with the outcome — I’m not among those people, but there are many who do — as an advocate of the First Amendment, I strongly support the right to disagree with the government, the right to disagree with politicians,” he said, seemingly oblivious of the fact that Lindell was at that very moment exercising his First Amendment right to disagree with politicians, the government, and even objective reality itself.

“The First Amendment today is in great danger,” Dersh warned, before going on to list a whole bunch of entities which cannot possibly violate the First Amendment because they are not the government.

“It’s in great danger from corporations, from universities. It’s in great danger from the social media, from YouTube and from Facebook and from Twitter, that are censoring certain points of view and not other points of view.”

He failed to mention the gross violations of the First Amendment by Lindell’s own social media site Frank Speech — at least under the Constitution according to Dersh — which bans swearing, pornography, and blasphemy.

Then he accused the government of censoring Lindell by allowing Dominion’s defamation suit to survive a motion to dismiss for failure to state a claim.

One of the things that the judge said yesterday in the opinion is that the case can go forward against Mike and MyPillow because there were people in congress and the attorney general and others who disagreed with him. And if they disagreed with him, he should know he was wrong and they’re right. That’s not the way the First Amendment operates.

UH HUH.

It seems the eminent professor is … confused. Mike Lindell wasn’t sued for expressing an opinion about the outcome of the election — he’s free to scream until he’s hoarse that the whole thing was rigged. He stated as fact that Dominion Voting Systems participated in the “Biggest election fraud in world history!!!! Crime against the world!!!” He said the company’s machines “were built to cheat” and “steal elections” and claimed they used “algorithms” to flip votes from Trump to Biden.

As for the part about government officials disagreeing with him, the issue is whether Lindell was reckless as to the veracity of a fake spreadsheet which pointed to a bunch of fake IP addresses as proof that the election was stolen in the face of massive countervailing evidence, including “(1) public statements by election security specialists, Attorney General Barr, numerous government agencies, and elected officials; (2) independent audits; and (3) paper ballot recounts that disproved those claims.”

“As a preliminary matter, a reasonable juror could conclude that the existence of a vast international conspiracy that is ignored by the government but proven by a spreadsheet on an internet blog is so inherently improbable that only a reckless man would believe it,” Judge Nichols wrote.

Which is not the same as saying that disagreeing with the government is prima facia evidence of actual malice, and, frankly speaking, it strains credulity to suggest that Prof. Dershowitz couldn’t work that one out for himself. Particularly in light of his role as Supreme Court clerk in drafting a concurrence in New York Times v. Sullivan — a role he reminded the crowd of in an effort to burnish his First Amendment bona fides.

In fact, the whole performance had a certain Old Man Yelling at Clouds quality, with Dershowitz hunched painfully close to his computer’s camera railing against the new McCarthyism.

“I grew up during McCarthyism when the First Amendment didn’t protect people who were on the left. I was a student in college, and I saw professors fired and other professors terrified to make statements that disagreed with the politically correct views of the day,” he intoned ominously. “Today McCarthyism has become a tactic of the extreme left, a tactic that’s used to prevent people expressing views different from those expressed by the government.”

Which makes complete sense … if you ignore the fact that Lindell accused Dominion of doing actual crimes, and then got sued by the private company for damaging its reputation.

What does the government “view” on anything have to do with this? Dersh doesn’t say. But he’s very sure that if Dominion is allowed to recover for the lost business resulting from Lindell’s lies, we’ll all end up with duct tape over our faces if we step out of line.

“Do not censor him,” he yelled, wagging his finger inches from the camera. “Because if you censor him, you are weakening the First Amendment and whatever is true of Mike Lindell and MyPillow’s ability to speak is true of your ability to speak. Today it’s the election. Tomorrow it might be health and the vaccines and other controversial issues. It will be China, it will be Iran, it will be future elections. And yesterday was a bad day for the First Amendment.”

Vaccines? DRINK. And after you’ve had a couple, watch this video.

Or skip the video and go right to happy hour. Because that there is some sorry, sorry bullshit.


Elizabeth Dye lives in Baltimore where she writes about law and politics.

Thoughts About Using Out-Of-Office Replies

Out-of-office replies are pretty commonplace throughout many corporate workplaces, including law firms. For people who may not be familiar with this technology — they do exist — out-of-office replies automatically respond to an email, stating that the recipient is away from their computer due to a vacation, family emergency, or other reason. Although out-of-office replies definitely serve a purpose, they should be used in only certain contexts.

I am old enough to remember the beginning of mass emailing in the mid-1990s. I remember sending my first email to a teacher in 1996 and accidentally sending about a dozen messages since I had no idea what I was doing. In an earlier time, people had more difficulty checking email. Indeed, emails could only be reviewed on computers, and if someone was in a remote place, they might not be able to access a computer. Moreover, people just didn’t check email as often. Around the turn of the millennium, I remember a teacher telling me that she was very attentive to email, and made sure to check it every day! Of course, people now check email dozens if not hundreds of times a day.

In an earlier time, it made a lot of sense to throw up an out-of-office reply in many contexts, since people naturally did not check emails as often or might not have access to email. However, now people can access emails constantly even if they are away from their physical offices. Receiving an out-of-office reply can be somewhat annoying. This is especially true when people need to email a multitude of attorneys and others about a matter and then receive an insane number of automatic messages in response. In order to balance the benefits of using out-of-office replies with the annoyance of receiving perhaps unnecessary automatic messages, people should consider a few things before activating an out-of-office reply.

Let me first say that out-of-office replies are definitely worthwhile if they help establish boundaries between someone’s work life and personal life. With the widespread adoption of work-from-home technologies, people have a more difficult time than ever getting off the grid to relax without needing to review and respond to work messages. If someone needs to set up an out-of-office reply so that people will respect their personal time, more power to them because law firms and attorneys should hold work-life balance more sacred than many shops do right now.

In any event, the length of time a person will be away from their work obligations is a major factor when determining if an out-of-office reply is necessary. I don’t think it is generally necessary to activate an out-of-office reply if someone will be away for less than a day. I have seen attorneys put up such messages when they will be indisposed for a few hours for some kind of hearing or other legal matter, and there is almost always no reason why they can’t just get back to the person at a later time without an out-of-office reply. Even if someone will only be out of pocket for a day or so, it might make sense to just respond to someone at a later time rather than spam email folders with out-of-office replies.

In addition, if an out-of-office reply is absolutely needed, lawyers should feel free to include a message about what they will be doing if they are comfortable. Such messages can help others know a little about the person they are emailing and why that person will be unavailable. One time, I received an out-of-office reply from an adversary who said he would be gone for a week on a long motorcycle trip, and he would not be able to really look at his phone while he was riding. This made me think my adversary was such a badass, and I could understand why he was so out of pocket. Other counterparts have similarly disclosed vacation plans and conference attendance as the reasons they were gone, which I appreciated.

It is also important when using out-of-office replies that people note who can be reached if there is an emergency. Many lawyers already adopt this practice, but many legal professionals forget to include someone who can be contacted if a matter cannot wait for someone to return to work. Moreover, it is best to be specific with the particular person who can be contacted if emergent matters arise. Many times, people just list a general office number which may not be helpful in a given situation. Indeed, one time, I was working on a closing and absolutely needed to contact someone at the firm as soon as possible, but an out-of-office message just provided the general office phone line, which left me and the other people involved with the closing scrambling.

All told, out-of-office replies definitely still have uses within the legal profession, especially when establishing work-life boundaries. However, people should be thoughtful about when they decide to use out-of-office replies and what they include in the message to be as efficient as possible.


Jordan Rothman is a partner of The Rothman Law Firm, a full-service New York and New Jersey law firm. He is also the founder of Student Debt Diaries, a website discussing how he paid off his student loans. You can reach Jordan through email at jordan@rothmanlawyer.com.