The supreme court justice Stephen Breyer has told young Americans Democrats facing Republican intransigence, obstruction and outright attacks on democracy should “get ‘em talking”, in search of compromise and progress.
Breyer was speaking to middle- and high-school students on Friday, in an event organised by the National Constitution Center.
The same day, Republicans in the Senate deployed the filibuster, by which the minority can thwart the will of the majority, to block the establishment of a 9/11-style commission to investigate the attack on the US Capitol by supporters of Donald Trump on 6 January.
Thomas Kean, who led the 9/11 panel, told the Guardian the Republican move was “democracy’s loss”.
From the White House, Joe Biden faces Republican reluctance to engage on his plans for investment in infrastructure and the pandemic-battered economy. Amid concerted attacks on voting rights in Republican states, federal bills to protect such rights seem unlikely to pass the Senate.
“You need that Republican’s support?” Breyer told the listening students. “Talk to them … You say, ‘What do you think? My friend, what do you think?’ Get ’em talking. Once they start talking eventually they’ll say something you agree with.”
Democrats do not agree with Trump’s lie that his election defeat by Biden was the result of electoral fraud, which fuelled the deadly attack on the Capitol. Nor do they agree with Republican attempts to overturn Roe v Wade, the 1973 supreme court ruling which safeguards a woman’s right to abortion.
The court has a 6-3 conservative majority, after Republicans ripped up precedent to block Barack Obama’s final appointment then installed three justices under Trump, in the last case reversing their own position on appointments in the last year of a presidency.
Breyer was speaking less than two weeks after the court agreed to hear a major challenge to abortion rights.
The case, which the justices will hear in their next term, beginning in October, involves an attempt by Mississippi to revive a law that bans the procedure after 15 weeks of pregnancy.
In 2019 the conservative Clarence Thomas, who has backed abortion restrictions, urged the court to feel less bound to upholding precedent. Asked about the value of adhering to past rulings, Breyer said the court should overturn precedent only in the “rare case where it’s really necessary” and said law is about stability.
“The law might not be perfect but if you’re changing it all the time people won’t know what to do, and the more you change it the more people will ask to have it changed, and the more the court hears that, the more they’ll change it.”
Many on the left seek change on the court, in the form of Breyer’s retirement. After the death of the progressive champion Ruth Bader Ginsburg at 87 last September, Breyer, at 82, is the oldest judge on the panel. Ginsburg was replaced by Amy Coney Barrett, a strict Catholic widely seen as likely to favour overturning precedent on abortion.
Brett Kavanaugh, another conservative justice, was installed by Republicans after Anthony Kennedy retired, a move supported by the Trump White House. Kennedy was conservative but a swing vote on key rulings regarding individual rights. Kavanaugh, once an aide to President George W Bush, is more reliably rightwing.
Breyer told the students, aged between 11 and 18, that as part of his daily routine he watches reruns of M*A*S*H, a hit sitcom that ran from 1972 to 1983. He also rides a stationary bike and meditates.
Questioned about deepening polarisation some fear may tear the US apart, Breyer said he was “basically optimistic”. For all of its flaws, he said, American democracy is “better than the alternatives”.
He also urged his listeners to put “unfortunate things” in historical context.
“It’s happened before,” he said. “This is not the first time that people have become discouraged with the democratic process. This is not the first time that we’ve had real racism in this country. It used to be slavery before that.”