The 3 Supreme Court justices to watch after Breyer retires

By Joan Biskupic, CNN legal analyst & Supreme Court biographer

Supreme Court Justice Sonia Sotomayor would gain new power, Justice Elena Kagan will likely recalibrate her negotiating style and Chief Justice John Roberts may have less chance for compromise.

The departure of any one justice shuffles relations among all others, and the impending retirement of Justice Stephen Breyer will especially affect his liberal colleagues and the conservative chief justice who sits in the center chair and is ideologically near the middle, too.

The 83-year-old Breyer, while solidly on the liberal wing, has nonetheless sought common ground. More than most justices he has tried to bridge today’s 6-3, conservative-liberal divide, with an approach marked by with unflagging optimism.

The oft-repeated adage, attributed to the late Justice Byron White, who served from 1962 to 1993, is that with each new justice, there’s a new court. The justices reorient to the latest appointee and, in turn, to each other.

The courtroom bench would be reordered next session, according to the custom of alternating seniority. Roberts, in the center chair, would sit between Clarence Thomas, now in his 31st session and already at Roberts’ side, and Samuel Alito, finishing his 16th year and soon to succeed Breyer as third in seniority.

The sheer position of Roberts between two rocks of the right-wing illustrates the deepening conservative dominance, irrespective of President Joe Biden’s choice of a Breyer successor.

Sotomayor, who will become the senior liberal on the bench, would be positioned between Thomas and Justice Neil Gorsuch.

Biden has pledged to name the first Black woman to the bench. The nominee would make history at America’s 233-year-old court. Of the 115 justices appointed over the decades, only five have been women and three have been either black or Hispanic.

Sonia Sotomayor

Irrespective of Biden’s choice, some changes in relations among the nine are certain.

The 67-year-old Sotomayor, in her 13th session on the high court, will become the senior liberal upon Breyer’s retirement. The 2009 appointee of President Barack Obama has staked out the far left of the bench and delivered withering criticism of the conservative majority’s direction.

Her voice has been heard most powerfully in recent months as she has highlighted the consequences for pregnant women in Texas deprived of abortion rights, and the protections of the 1973 Roe v. Wade ruling.

On January 20, she wrote as the majority again rejected a plea from clinics to suspend the state ban on abortion at roughly six weeks of pregnancy, “Today, for the fourth time, this Court declines to protect pregnant Texans from egregious violations of their constitutional rights. … (T)he Court allows the State yet again to extend the deprivation of the federal constitutional rights of its citizens through procedural manipulation. The Court may look the other way, but I cannot.”

When the nine heard a separate challenge to a Mississippi 15-week abortion ban that could be a vehicle for overturning Roe v. Wade, she said from the bench, “Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?”

Sotomayor’s new position of seniority will give her authority, under court tradition, to assign opinions within the left when the three liberals vote together. In the past, new senior justices have variously altered their approach in reaction to the responsibility.

After Justice John Paul Stevens became the senior liberal in 1994, he was less inclined to strike out on his own in separate opinions, and he worked more collectively with his colleagues on the left.

Unlike some of Sotomayor’s ideologically charged dissents calling attention to unfairness as she sees it, the earlier solo dissents of Stevens often reflected his idiosyncratic views of the law.

When Justice Ruth Bader Ginsburg took over as senior liberal in 2010, as Stevens retired, the pioneering women’s rights advocate took up the mantle on a wider array of issues.

In 2013, when conservative justices eliminated a Voting Rights Act provision requiring states with a history of discrimination to obtain approval for electoral changes, she wrote for dissenters: “Throwing out preclearance when it has worked and is continuing to work to stop discriminatory changes is like throwing away your umbrella in a rainstorm because you are not getting wet.”

Sotomayor’s pointed dissents already grab attention. But she often writes alone. That may change, depending on the new justice and reverberations as the nine rearrange.

Elena Kagan

Breyer’s departure is likely to be felt most keenly by Kagan, a 2010 appointee of Obama, who has worked closely with him over the years.

“I’ll miss Steve Breyer every day after he has left the Court,” she said in a statement on Thursday, adding, “He believes in making institutions work; to strengthen this one, he listens to other views with care and generosity, and does everything he can to find common ground.”

Breyer and Kagan often broke off from Sotomayor and Ginsburg (until her 2020 death) to write their own dissenting opinions to the conservative majority. Kagan and Breyer dissented separately, for example, in 2018 when a five-justice majority upheld former President Donald Trump’s travel ban and Sotomayor and Ginsburg emphasized Trump’s “anti-Muslim animus.”

Without Breyer, her partner in moderation, Kagan may amplify her dissenting views. She has appeared increasingly frustrated by the limits of cross-ideological negotiation on the court controlled by a supermajority of six conservatives, since Justice Amy Coney Barrett succeeded Ginsburg in late 2020.

Still, Kagan is likely to remain open to overtures from Roberts for ways to compromise to temper the hard-right.

John Roberts

Roberts has been a consistently conservative jurist yet overtaken these days by the rightward inclinations of the three justices appointed by Trump (Gorsuch, Barrett, and Brett Kavanagh) and veterans Thomas and Alito.

Roberts’ leverage in negotiations with colleagues diminished when he lost his position at the ideological center in late 2020. The right-wing has dug in firmer in recent months, notably on abortion rights, over Roberts’ dissents.

Yet the chief justice readily aligned with fellow conservatives earlier in January when the majority struck down the Biden administration’s vaccine policy for large employers.

Roberts is also likely to be in sync with colleagues on the right as they take up a controversy next fall over race-based affirmation action, brought by challengers to Harvard and University of North Carolina admissions practices. Breyer, Sotomayor and Kagan have blasted Roberts’ long-held rejection of racial remedies.

The new justice’s impact may not be evident in early months or even years. Irrespective of credentials, there’s usually a break-in period for any high court novice.

“I do think it takes three to five years,” Breyer told CNN last October. “I was pretty nervous the first three years at least, and maybe a little longer. … ‘You think, can I really do this job?'”

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