CBS’s Stephen Colbert has used The Late Show to routinely condemn Supreme Court rulings after it rejected his legal theories from way out in left field. On Monday, Colbert welcomed former liberal Justice Stephen Breyer to the show to promote the latter's new book and seek affirmation that his views of the Court are correct. Unfortunately for him, Breyer refused to play along.
In the first segment with Breyer, Colbert asked, “Do you, former Justice Breyer, believe that former presidents have absolute immunity from prosecution for crimes committed while in office? Do you think, does that seem like a natural yes from you?”
Breyer may be retired, but he has not shaken the idea that a judge should not comment on a case before the court, “That seems like a general idea.”
Colbert tried again, “It, that is a general idea. Do former presidents have absolute immunity? It's not specific about one person. Would any president have that? I'm just curious, what you, snap judgment, don't think about it. Go.”
Holding firm, Breyer repeated himself “I agree that you have a general idea. I can't go farther. I can't because of the—”
Switching tactics, Colbert tried a case that the Court has already heard, “You're no fun, but I'll ask you something that I think you can answer. What do you think the purpose of the Insurrection Clause was…Why does it need an actuating law or action by Congress to impose the sanction for insurrection? Do you have any thoughts on them?”
Again, Breyer offered no opinion on the case that went 9-0 against Colbert, ultimately declaring, “I am tempted to say something like ‘But I wasn't there when it was written.’ My grandchildren think I was. But in fact, I wasn't and really what I'm doing is avoiding the question.
After a commercial break, Colbert observed that “Politico says only 24 percent of people trust SCOTUS to issue a fair and nonpartisan ruling.” He then wondered, “Is the fear that the public has of political influence on the Court valid? And is the Court's fear that the public will no longer believe they are impartial about?”
Breyer answered “That's why I wrote this book… I've been for 40 years with other judges and 28 on the Supreme Court, I think the people who try to get them appointed may have a lot to do with politics, but they want a judge who will think that the law really requires those things that then they then politically like, but the judge's point of view is he or she is deciding according to law and that's why I write this.”
Instead of politics, “it is a question of what approach you use. You say, do you just read text? Or do you look back to the values and purposes and consequences of the Constitution or what we're about in this country? Which of those do you choose and I think that's important and does make a difference and that's what people should focus on.”
Colbert then tried one more time, “But to believe that there is no partisan backing a judgment into the result you want. If they were always consistent on their judicial philosophy and always consistently textualists. Do you find that to be the case that your fellow justices are consistent in the lens that used to judge the constitutionality of a case?”
Breyer answered that “You aim at it and you never know if you get there.”
Surely, those weren’t the answers Colbert was hoping for.
Here is a transcript for the March 25 show:
CBS The Late Show with Stephen Colbert
3/26/2024
12:07 AM ET
STEPHEN COLBERT: Do you, former Justice Breyer, believe that former presidents have absolute immunity from prosecution for crimes committed while in office? Do you think, does that seem like a natural yes from you?
BREYER: That seems like a general idea.
COLBERT: It, that is a general idea. Do former presidents have absolute immunity? It's not specific about one person. Would any president have that? I'm just curious, what you, snap judgment, don't think about it. Go.
BREYER: I agree that you have a general idea. I can't go farther. I can't because of the--
COLBERT: You're no fun, but I'll ask you something that I think you can answer. What do you think the purpose of the Insurrection Clause was?
BREYER: I haven't looked at-- well.
COLBERT: It's in the Constitution. It's an excellent little read.
BREYER: Yes, it is.
COLBERT: It's only the 14th Amendment. Tell me you read that far. Okay, there it is. Okay, all right. Someone's got a Constitution all the time. All right. All right, but so, anyway, you know this document. I'm just curious why does it include no definition of what insurrection is? Do you have any idea? Because it does say how someone could be reinstated and it says that someone who committed insurrection can't run for office. Why does it need an actuating law or action by Congress to impose the sanction for insurrection? Do you have any thoughts on them?
BREYER: I am tempted to say something like "But I wasn't there when it was written." My grandchildren think I was. But in fact, I wasn't and really what I'm doing is avoiding the question.
…
COLBERT: Politico says only 24 percent of people trust SCOTUS to issue a fair and nonpartisan ruling. Okay. Is the fear that the public has of political influence on the Court valid? And is the Court's fear that the public will no longer believe they are impartial about?
BREYER: I think of that is a very good question for a particular reason. That's why I wrote this book. It is. Because I wanted to show people that what most think, that this is all politics, that is not my experience. You never say zero about anything, but when I've been for 40 years with other judges and 28 on the Supreme Court, I think the people who try to get them appointed may have a lot to do with politics, but they want a judge who will think that the law really requires those things that then they then politically like, but the judge's point of view is he or she is deciding according to law and that's why I write this.
Because I want to say it isn't a question of what the judge just likes or doesn't like. It isn’t a question of just politics, it is a question of what approach you use. You say, do you just read text? Or do you look back to the values and purposes and consequences of the Constitution or what we're about in this country? Which of those do you choose and I think that's important and does make a difference and that's what people should focus on and that's why I try to explain here what that consists of, how they might focus on it, and why it might make a difference to your life and my life and a life of every American and I hope for the better.
COLBERT: I would hope for the better too. And my follow-up, your honor, is that I agree that I'm sure that justices have a judicial philosophy through which they read the Constitution. But to believe that there is no partisan backing a judgment into the result you want. If they were always consistent on their judicial philosophy and always consistently textualists. Do you find that to be the case that your fellow justices are consistent in the lens that used to judge the constitutionality of a case?
BREYER: You aim at it and you never know if you get there. Of course people are influenced by their backgrounds, of course they’re influenced by the lives they've had, by the philosophy they have. But suppose that you, and not you, it wouldn't be you personally, but that you were an unpopular person. Impossible, but suppose you were.
COLBERT: Can't be done but go ahead, yes.
BREYER: But an unpopular person is in front of a judge for trial—
COLBERT: Yes.
BREYER: -- you don't want that judge to be influenced by how the public feels about that person. You don't want a judge to be influenced by popular opinion when he's judging the case, but what Professor Freund said, great professor said at Harvard Law School, a great professor, and he said the way that politics works in the Court is this: no judge, not you or me or anyone else, should ever be influenced by the political temperature of the day. Every judge will and probably should be influenced by the climate of the era. A little profound, a little obscure, but the more you think about that phrase, the more it sort of rings a bell in my mind.
