Former Supreme Court Justice Says Trump Judges Should Be 'Concerned'

Retired Supreme Court Justice Stephen Breyer said Donald Trump's appointees on the bench should be "concerned" about how public trust has declined in the wake of several bombshell rulings.

Breyer, who retired in 2022, has written a new book titled Reading the Constitution: Why I Chose Pragmatism, Not Textualism" that's set to be published March 26—the same date that the Supreme Court will hear arguments in a case about access to mifepristone, a commonly used "abortion pill."

In the book, a copy of which was obtained by The New York Times, Breyer cited the three justices appointed by Donald Trump, referring to them only as "new justices" who have been on the Court for "two or three years." Justice Neil Gorsuch joined the Court in April 2018, Brett Kavanaugh in October 2018 and Amy Coney Barrett in October 2020.

Writing about the series of major cases that have come before the Court's fairly new conservative supermajority, Breyer says: "Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism."

He added that his former colleagues "may well be concerned about the decline in trust in the court — as shown by public opinion polls."

"Something important is going on," Breyer told the Times in an interview published Monday. The Court has taken a wrong turn, he said, and it is not too late to turn back."

The public's view of the Court remains near record lows, according to the most recent Gallup polling. A survey conducted last September found that only 41 percent of U.S. adults approve of how the justices are handling their job. This follows a trend over the past two years, when 40 to 43 percent said the same.

The Court's approval rating first fell to a record-low 40 percent in September 2021 after it declined to block a controversial Texas abortion law, which came nine months before the Dobbs v. Jackson Women's Health Organization decision that overturned Roe v. Wade and the constitutional right to an abortion. The Court's low rating has not recovered since.

The September 2023 poll also found that 49 percent of respondents said they have "a great deal" or "a fair amount" of trust and confidence in the Court. Before 2022, trust in the judicial branch averaged 68 percent.

Along with the low ratings, the Court has been mired in ethics controversies, which Chief Justice John Roberts finally addressed last year. "I want to assure people that I am committed to making certain that we as a Court adhere to the highest standards of conduct," he said.

But as the ethics concerns have persisted, Roberts did not acknowledge them in his annual "Year-End Report on the Federal Judiciary" that was released in December.

In his new book, Breyer, who dissented from the Dobbs ruling, said that while the supermajority may have hoped "that legislatures and not courts will decide the abortion question," the actions that followed the decision showed the naïveté of those expectations.

In his interview with the Times, the former liberal justice said, "There are too many questions."

"Are they really going to allow women to die on the table because they won't allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn't do that. And there'll be dozens of questions like that," he said.