Stephen Breyer’s Contorted Reasoning and Naivety

Ian Mitroff
3 min readApr 9, 2024

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Given retired Supreme Court Stephen Breyer’s recent rambling performance on the PBS Newshour, I thereby was surprised to find his Op-Ed in The New York Times where he displayed the same type of contorted reasoning and naivety[i]. In effect, he was asking why what goes on in the Supreme Court, very which to put it mildly is a very special Institution, can’t go on in Society at large.

The differences between the Justices are not only often at odds but are well-known since nearly everything they say and do is covered copiously by the Press.

In short, the Court is governed by a clear set of Norms that everyone is expected to follow. In Breyer’s words:

“Certain unwritten rules help to smooth over differences and maintain good personal relations among court members. At conferences when we discussed cases privately, we proceed in order of seniority, and no one would speak twice until everyone had spoken once. Thus, everyone could be fairly sure that he or she would have a chance to speak before minds were definitively made up. (This rule helped me for I was the most junior justice for 11 years.)”

In addition, everyone prevailed from saying that he or she had a better argument than each other.

The idea that this would work in our highly Polarized and Divided Society is wishful thinking at best, if not outright naïve and ludicrous.

Even Breyer has some appreciation for the fact that what works for a highly select collection of nine people with lifetime appointments won’t necessarily work for Society at large. Nonetheless, he still believes that “….listening to one another in search of a consensus might help”.

Indeed, if we could do this, we wouldn’t be in the unmitigated messes in which we find ourselves. We can’t even entertain such proposals from persons no matter how lofty their careers have been.

[i] Stephen Breyer, “Unlikely Personal Alliances on the Supreme Court,” The New York Times, Thursday, April 4, 2024, P A21.

Ian I. Mitroff is credited as being one of the principal founders of the modern field of Crisis Management. He has a BS, MS, and a PhD in Engineering and the Philosophy of Social Systems Science from UC Berkeley. He Is Professor Emeritus from the Marshall School of Business and the Annenberg School of Communication at USC. Currently, he is a Senior Research Affiliate in the Center for Catastrophic Risk Management, UC Berkeley. He is a Fellow of the American Psychological Association, the American Association for the Advancement of Science, and the American Academy of Management. He has published 41 books. His latest is: The Socially Responsible Organization: Lessons from Covid, Springer, New York, 2022.

Photo credit: Brookings Institution/Flickr.com

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