Breyer’s role on the Supreme Court and the hole he’s leaving
By Joan Biskupic, CNN legal analyst & Supreme Court biographer
Supreme Court Justice Stephen Breyer can come across as a bookish government man, captivated by the nitty-gritty of regulations and convinced that Washington, on the whole, works.
Ensconced in chambers lined with shelves of antique books on philosophy inherited from an uncle and strewn with briefs, papers and more books, he has filled his opinions with charts, statistics and multi-point rationales.
But the liberal Breyer also wrote far-reaching opinions endorsing abortion rights and, in dissent, backing school integration. And behind the scenes at the court, the 83-year-old justice is known for trying to build consensus, even as the court grew more conservative, and he worked against the odds.
The bespectacled Breyer, who often quotes British humorist P.G. Wodehouse and retells his grandchildren’s jokes, has conversed easily with all eight of his colleagues, dodging the friction of clashing ideologies and personalities.
As such, Breyer will leave a hole in the fabric of the court when he officially steps down later this year. More than most of his colleagues, he worked to bridge the conservative-liberal divide that was long 5-4 and now is 6-3.
Any successor would presumably lack Breyer’s Washington experience. But a replacement would bring new youthfulness to the left side of the bench and, if President Joe Biden fulfills a campaign promise, would mean the first Black female justice in the court’s history.
Among Breyer’s notable moves at the center of the court: helping craft a compromise with Chief Justice John Roberts in 2012 to uphold the Affordable Care Act and casting the decisive vote in 2005 regarding displays of the Ten Commandments. His solo concurring statement allowed a 40-year-old monument at the Texas Capitol to remain in place — but meant framed Ten Commandment displays in Kentucky courthouses had to be removed.
One of Breyer’s most robust opinions emerged as he protested a 2007 majority decision striking down school integration plans in Seattle and in Louisville, Kentucky. The plans, which allowed consideration of students’ race in school assignments, were intended to offset neighborhood housing patterns and bring districtwide diversity.
“This is a decision that the Court and the Nation will come to regret,” Breyer wrote, adding that Roberts and the conservatives who joined him had undermined the promise of the 1954 Brown v. Board of Education school-desegregation landmark.
Breyer had been reared in San Francisco, where his parents were active in the community and local schools. His father, Irving Breyer, a lawyer, served the San Francisco school district. Justice Breyer still wears the Omega Seamaster wristwatch his father was given upon retirement.
During the earlier stages of the Covid-19 pandemic, Breyer regularly decamped with his wife, a daughter and three grandchildren to the family home in Cambridge, Massachusetts. But he remained active on Zoom, appearing before legal groups and students.
He returned with his colleagues to in-person oral arguments in October. He quipped in interviews that their ritual handshakes before each of their meetings had been replaced with elbow bumps, as a precaution against the virus. “We’re rubbing elbows,” he said, holding up his elbow and rotating it midair.
In an expansive interview with CNN in October, Breyer defended the high court against criticism that it engages in politics or requires institutional revisions such as term limits for justices or seats beyond the current nine.
“It’s an institution that’s fallible, though over time it has served this country pretty well,” he said. Of his own approach, Breyer added, “Once you put on the robe of the judge, you’re a judge. And that means you’re a judge for every person. Every person won’t like your decisions. A lot will dislike them. … You still have to remember that you are there for everybody.”
In a book he published last year, adapted from a lecture at Harvard, Breyer maintained that the justices were not as politically divided as they appeared, now split between six Republican-appointed conservatives and three Democrat-appointed liberals.
He insisted that differences with his colleagues flowed from their distinct views of the structure of the Constitution. Yet in classic Breyer style, he had a three-point caveat to his claim that judging and politics don’t mix: “[I]t is wrong to think of the Court as another political institution. And it is doubly wrong to think of its Members as junior league politicians. But, given 1) the highly general language of the Constitution; 2) the ambiguous relationship between jurisprudence, political philosophy, and policy, and 3) the inevitable, conscious or unconscious impact of a human being’s background upon his or her basic professional views, to find a total divorce between the two is not quite right either.”
How Breyer got to the bench
President Bill Clinton appointed Breyer to succeed the retiring Justice Harry Blackmun in 1994. Breyer previously had been a US appellate judge in Boston. An architecture enthusiast, he oversaw (as chief judge on the 1st US Circuit Court of Appeals) construction of a dramatic federal courthouse overlooking Boston Harbor and distinguished by an 88-foot glass wall that faces the water.
Breyer’s legal career began at the Supreme Court, where he was a law clerk to Justice Arthur Goldberg. In the 1970s, he served as counsel to the Senate Judiciary Committee, assisting Democratic Sen. Ted Kennedy of Massachusetts, who strongly recommended Breyer to Clinton.
In his Senate work, Breyer focused on criminal sentencing guidelines and airline deregulation. As a judge, he continued to support agency solutions, especially in the face of court conservatives trying to rein in regulators. He also highlighted the importance of individual participation in civic life.
“For our government to remain a democratic republic,” he wrote in a dissenting opinion in 2020 that touched on both themes, “the people must be free to generate, debate, and discuss both general and specific ideas, hopes, and experiences. The people must then be able to transmit their resulting views and conclusions to their elected representatives. The object of that transmission is to influence the public policy enacted by elected representatives.”
He spoke as he wrote. To lawyers who argued before the justices, Breyer offered multi-part questions. His hypothetical scenarios grew wilder through the years, and he would inevitably leaven his queries with a self-deprecating remark. “This question may seem naive and simple-minded,” he said during one 2021 argument, “but I don’t mean it to be.”
Fluent in French, Breyer has sometimes invoked Albert Camus’ “The Plague” in oral arguments and speeches.
During 2021 oral arguments in a case testing when police without a warrant may enter a home under certain emergency circumstances, he began a scenario: “A baby’s been crying for five hours; nobody seems to be around. A rat’s come out of the house at a time when rats carry serious disease and have to be stopped.” Breyer later added in the same colloquy: “Try reading ‘The Plague.’ Try reading something where a rat coming out of a house could give people bubonic plague. I mean, you know, it’s easy to invent hypotheticals.”
Moderate liberal rulings
The late Justice Ruth Bader Ginsburg joined the high court a year before Breyer, as Clinton’s first appointee, and she more prominently carried the banner for liberals. So, too, has Justice Sonia Sotomayor, a 2009 appointee of President Barack Obama.
Breyer has partnered most with Justice Elena Kagan, who was named by Obama in 2010. They have been allies in trying to work with the individual justices on the right. In 2012, when Roberts broke from his conservative brethren to uphold the Obamacare law, he conferred with Breyer and Kagan for compromises on the individual insurance mandate and Medicaid expansion.
Last year, when the justices rejected a challenge to Obamacare for the third time, Roberts assigned the opinion to Breyer, who wrote a narrow, consensus decision outright rejecting the claims. The court said the Republican-led states and other challengers lacked legal “standing” because they had suffered no injury related to the law. The case had centered on a tax penalty in the Affordable Care Act that Congress zeroed out in 2017.
Breyer’s moderate liberalism has also led him to a leading role in a string of abortion-rights cases. His moderate approach, acknowledging the various interests, enabled him to keep the requisite five votes for a majority, at least through 2020, when liberal Ginsburg died and was succeeded by conservative Justice Amy Coney Barrett, an opponent of abortion rights.
“We understand the controversial nature of the problem,” he wrote in a 2000 case. “Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child; they recoil at the thought of a law that would permit it. Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”
In 2016, conservative Justice Anthony Kennedy provided the crucial fifth vote for a Breyer opinion striking down a strict Texas abortion regulation on physicians and clinics.
In 2020, Breyer produced only a plurality opinion (with three liberal justices), as the court invalidated a similar Louisiana credentialing regulation for physicians who perform abortions. Roberts cast the fifth vote to strike down the law, but unlike Kennedy, who retired in 2018, Roberts would not join Breyer’s broader abortion-rights rationale.
The court’s view of abortion rights is certain to diminish — because of the strengthened conservative majority. Breyer dissented in late 2021 and again this month as the right wing repeatedly refused to prevent a Texas ban on abortions after about six weeks of pregnancy.
In a separate line of cases, Breyer has regularly criticized the US system of capital punishment but stopped short of the position taken by liberals of another era that the death penalty is plainly unconstitutional.
In a 2015 opinion, joined only by Ginsburg, he urged the justices to reconsider the constitutionality of capital punishment. He cited “three fundamental constitutional defects” in the death penalty: “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.”
Perhaps Breyer’s most memorable writing came in the 2007 case known as Parents Involved in Community Schools v. Seattle School District No. 1, when the majority struck down a school integration plan that assigned students based on race.
“For much of this Nation’s history, the races remained divided,” Breyer wrote. “It was not long ago that people of different races drank from separate fountains, rode on separate buses, and studied in separate schools. In this Court’s finest hour, Brown v. Board of Education challenged this history and helped to change it. … To invalidate the plans under review is to threaten the promise of Brown. The (Roberts) plurality’s position, I fear, would break that promise.”
When he formally steps down, Breyer will have served 28 years. With his self-effacing style and emphasis on the dustier esoteric workings of government, he remained one of the least-known justices of his time. He sometimes made light of his relative anonymity.
During the period that he and Justice David Souter (who served from 1990 to 2009) overlapped, the two balding, unassuming men, just a year apart in age, regularly joked about how often they were mistaken in public for each other. At a joint appearance in 2011 at Harvard Law School, the two men delighted in the double meaning of one possible response when people asked whether they were mistaken for each other: No, we are not “mistaken,” but perhaps we are “confused.”
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