Breyer Defends Supreme Court as Shadow Docket Scrutiny Grows

Retired Justice Stephen Breyer defended his former colleagues on the US Supreme Court, saying he doesn’t believe any justice is serving to advance a political agenda.

The 87-year-old appointee of former President Bill Clinton said public criticism of the court is misplaced during an appearance Tuesday at the Harvard Graduate School of Education. The court has come under increased scrutiny in recent years, particularly over how it handles cases on its emergency docket and the Trump administration’s high win-rate in such petitions.

“I do not think there’s some kind of plot involved within the court to get this or that decided,” said Breyer, who has taught at Harvard Law School since his retirement in 2022.

Breyer’s comments came days after the New York Times reported on leaked internal memos from the court’s 2016 decision to block an Obama-era emissions regulation before lower courts had ruled. The order is widely described as the beginning of the court’s modern use of its so-called shadow docket.

Conservative justices, particularly Chief Justice John Roberts, have faced criticism from some commentators—and the court’s liberal justices—who argue the court treated the federal government differently during President Barack Obama’s administration than it has under President Donald Trump.

Breyer, who dissented in the 2016 case, dismissed those claims, saying he did not believe his colleagues were serving to “carry out some political agenda.”

“They are more conservative, perhaps, politically than I was,” Breyer added. “I mean, I grew up in San Francisco.”

Breyer also cautioned against calls for the court to more fully explain its emergency docket rulings, warning that doing so could lock justices into early views before the factual record is fully developed.

“Once you’ve written, you are wedded—not a hundred percent, but pretty much,” Breyer said. “And you haven’t heard the arguments fully and there hasn’t been the full briefing. And so let’s not go too far too fast in giving reasons.”