Stephen Breyer's Retirement Speech Reminded Us That the United States Is an Experiment. Will Our Experiment Succeed or Fail?

Stephen Breyer

Has the United States become a failing experiment? When Supreme Court Justice Stephen Breyer announced his retirement on January 27, 2022, public attention focused on the search for his replacement. As so often happens, people missed his point. Breyer taught an important lesson. Let’s not overlook it. He warned the United States about its political peril, while pointing to all of us to find a solution. He told us to be optimistic, but he also said that the nation’s success was up to all of us.

In his speech announcing his retirement, Supreme Court Justice Stephen Breyer called the United States of America “an experiment.” What an interesting word. Experiment. After almost two and a half centuries, we are an experiment? If we listen between the lines, however, we hear that Breyer’s speech offered a warning tempered by optimism. We only deserve to be optimistic if we heed his warning. That’s the irony. Was he right? After all these years, is United States still an experiment? Will our experiment succeed or fail? That is up to us, the experiment’s citizens. That was his message.


What Did Breyer Mean? An Experiment?

First, the United States was the first major nation in many centuries to establish itself as a constitutional republic. It was indeed, at its founding, an experiment. The nation’s Founders did not think about the United States Constitution as a sacred document. They considered it an experiment. That was, as we will see, Breyer’s first point.

Second, however, experiments can fail. That is the scary part. Breyer alluded, however indirectly, to the United States’ ongoing political crisis.


Is the United States Constitution an Experiment?

Breyer faced a rhetorical challenge As a judge, he wanted to rise above the political fray. Yet, he gently reminded the nation of its political crisis. To show that the United States is indeed an experiment, Breyer quoted Abraham Lincoln’s Gettysburg address. During the Civil War, Lincoln saw that the United States itself, the very idea of constitutional government, was on trial:

“And we are now engaged in a great civil war to determine whether that nation or any nation so conceived and so dedicated, can long endure.”

Breyer continued:

“See, those are the words I want to see: an experiment. And that’s what he thought. It’s an experiment.”

Breyer then reached farther back into history to cite the nation’s first president, George Washington:

“And I found some letters that George Washington wrote where he said the same thing: It’s an experiment. That experiment existed then because even the liberals in Europe, you know, they’re looking over here, and they’re saying that great idea in principle, but it’ll never work. But we’ll show them it does. That’s what Washington thought. And that’s what Lincoln thought. And that’s what people still think today.”

By mentioning today, Breyer asked his listeners to think about the American experiment in the present time.


Breyer Said That It’s All up to Us, the Americans of Today

It is indeed at the present time, generations after the nation’s founding, that people need to protect the American experiment. All of us, he said. Breyer continued:

“It’s us, but it’s you. It’s that next generation and the one after that. My grandchildren and their children. They’ll determine whether the experiment still works. And of course, I am an optimist, and I’m pretty sure it will.”

 
Yet, Not Everyone Believes in Our Republic

In polls, most Republicans still falsely claim that the 2020 election was stolen and that Trump actually won. Legislatures across the country are passing laws that put up absurd obstacles to restrict voting. In Texas, where I live, a mail-in ballot application has to list the Social Security number, driver’s license number, or voter number that the person used to register. Yet, in the news we learned that a World War II veteran registered many years ago, when none of those numbers were required. He therefore cannot obtain a mail-in ballot. The 95-year-old man promises that he will drag himself to the polls in person if necessary.

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Earlier Post: Liz Cheney Reminded Us of Our Values in Her Speech about Trump's False Election Claims 

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You don’t have to be 95 years old to have a problem. What if you don’t remember which number you used? Texas counties are rejecting as many as half of the ballot applications. What legitimate purpose can those mysterious voting rules serve? None, obviously. Their only purpose is to keep people from voting. Unfortunately, similar stories can be told across the nation.

In January 2021, for the first time in our nation’s history, we did not have a peaceful transfer of power. Seeking to overthrow the 2020 election, a raging mob, egged on by Republican leaders, ransacked the United States Capitol to overthrow the election’s results. After fleeing – fleeing from their own supporters! – many Republicans in the Congress bowed to the rioters and voted not to certify the election results. The United States’ constitutional system, which once seemed so secure, nearly collapsed. Is our experiment failing?

Yes, in much of the United States, the Constitution is still an experiment. The people who try to suppress American voters do not believe in the American experiment. They think that we will be better off if the experiment fails. Driven by fear – the fear of change – they seek to replace our republic with government by an arrogant minority.


What Can American Citizens Do about It?

Knowing all of this, Breyer still felt optimistic. For our American constitutional experiment to succeed, however, people have to care enough to fight for it. I don’t mean that they should fight with guns or knives. I mean to fight by voting and raising one’s political voice. That’s what Justice Breyer intended. When Abraham Lincoln himself ran for president in 1864, voter turnout ran over 73%. That was in the middle of the Civil War. Voter turnout in 2020 was less than 67%. And politicians boasted about the high turnout! Few of my university students could name the three branches of the federal government or remember who represented them in Congress. Too many gullible people believe whatever they hear on the television. Will our experiment succeed? Or fail? Let’s hope that Justice Breyer was right. Let’s hope it succeeds.

If our experiment is to succeed, people need to look for ways, big and small, to contribute to communities, and, indeed, the entire nation. Being an American means more than just to get a good job and make a lot of money. And, please, no matter what your political views might be, overcome any obstacles, register to vote, and participate in every election. A citizen’s most basic duty is to vote. Everything else is secondary.

We often blame our leaders when we have problems. Nevertheless, in a healthy republic, the people are the final authority. Let’s all take responsibility to heal our nation. As William Jennings Bryan once said, “We have submitted the issue to the American people and their will is law.” 

Was Justice Breyer’s speech too mild-mannered for our angry times? Maybe. Yet, is it not long overdue for us to tone down our political anger? Breyer was hopeful that the American people’s basic goodness will triumph. Let us all hope that he was right.

Justice Breyer was right. Our nation is an ongoing experiment. The experiment’s success is up to us. It rests on our shoulders. It rests on the shoulders of every generation.

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Earlier Post: Fannie Lou Hamer's Voting Rights Speech

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Image: US Supreme Court Webpage