Multiple news outlets reported Wednesday that Justice Stephen Breyer, the Supreme Court’s oldest member and one of its three remaining liberals, will retire, giving President Joe Biden his first opportunity to fill a seat on the nation’s highest court.
With Democrats controlling both the White House and a narrow majority in the Senate, this retirement is the party’s first real chance to fill a Supreme Court seat in more than a decade — and its first shot since Senate Republicans blocked former President Barack Obama’s Supreme Court nominee, Merrick Garland, from receiving a hearing in 2016.
A former administrative law professor, Breyer often tempered his liberalism with the kind of technocratic cost-benefit analysis that is common within that field. He was the Court’s staunchest defender of the right of legislative majorities to legislate, believing that judges should be very reluctant to strike down laws under debatable readings of the Constitution — though this broad trust of legislatures did not stop him from rejecting laws that sought to infringe on abortion rights, or from becoming the Court’s most outspoken opponent of the death penalty.
Breyer was also a skilled dealmaker, a talent honed during his extraordinarily successful tenure as chief counsel to the Senate Judiciary Committee from 1979 to 1980.
The story of how Stephen Breyer came to the Court is a reminder of how our politics has changed over the past generation. Nearly three decades ago, Democratic President Bill Clinton and Sen. Orrin Hatch, then the top Republican on the Senate Judiciary Committee, had a phone conversation. As Hatch recounted in his autobiography, it was 1993, and Justice Byron White had just announced his retirement. Clinton wanted Hatch’s thoughts on who he should nominate to replace White. And Hatch — here’s the part that is unimaginable in today’s Republican Party — offered two entirely reasonable suggestions to the new president.
Clinton, Hatch told him, should consider nominating Ruth Bader Ginsburg or Stephen Breyer, both federal appellate judges at the time. According to Hatch, the future justices “were highly honest and capable jurists” and “far better than the other likely candidates from a liberal Democrat administration.”
Hatch’s praise for Ginsburg may surprise modern-day readers, who know her as feminist icon the Notorious RBG. But at the time, Ginsburg was widely regarded as a moderate, center-left judge who had even criticized the Supreme Court’s abortion rights decision in Roe v. Wade (1973) for trying to do too much, too fast.
Hatch’s respect for Breyer, meanwhile, was undoubtedly shaped by the future justice’s tenure as a senior aide to Sen. Ted Kennedy.
As one of Kennedy’s top lieutenants on the Judiciary Committee, Breyer formed an unusually close working relationship with his Republican counterpart, minority counsel, and future federal judge Emory Sneeden, recalled Kenneth Feinberg, who worked with Breyer on Kennedy’s staff, in a tribute years ago. Breyer’s children played with the children of Sen. Strom Thurmond, the ranking Republican on the committee.
Breyer arrived at the Senate as a neoliberal consensus was starting to form between the two parties — he helped shepherd legislation deregulating the airline industry, a project that was popular with Republicans skeptical of government power.
The result was that, when a lame-duck President Jimmy Carter nominated Breyer for a seat on the US Court of Appeals for the First Circuit in 1980, Breyer enjoyed broad support even among Republican senators. Breyer was confirmed 80-10, even though Republicans could have filled the seat with one of their own if they’d only waited until Ronald Reagan’s inauguration.
Breyer, who is 83 years old and has served on the Supreme Court since 1994, represents one of the few remaining bridges to an era when meaningful bipartisan consensus was possible and personal relationships could sometimes overcome the drive for partisan advantage. And for many years on the Supreme Court, Breyer played a similar role to the one he played on the Senate Judiciary Committee — quietly hashing out compromises even as the political landscape tilted against his party.
Unfortunately, Breyer’s memories of a bygone age also left him somewhat naïve to what his Court — and American politics more generally — has now become. Many Democrats spent the first half of 2021 pleading with Breyer to retire while his party still controlled both the White House and the Senate, and thus could confirm a replacement. But Breyer initially rebuffed these calls, suggesting that if he timed his retirement to ensure a Democratic replacement, that would needlessly politicize the Court.
As the justice wrote in a 2021 book, “If the public comes to see judges as merely ‘politicians in robes,’” then “its confidence in the courts, and in the rule of law itself, can only decline.”
In any event, Breyer’s decision to retire now must come as a relief to Democrats, who’ve watched the Court become something where the kind of bipartisan deals Breyer remembers so fondly are rarely, if ever, possible. With Ginsburg’s death in September 2020 — and her replacement with the conservative Justice Amy Coney Barrett — Breyer leaves a Court with a 6-3 conservative majority, one that shows far less inclination toward compromise than the Court Breyer served on for most of his time as a justice.
The invisible man
Breyer spent most of his 27 years on the Supreme Court as part of a four-justice liberal minority, and his public profile was often overshadowed by that of his colleagues.
Ginsburg was the pop culture icon who, by virtue of her seniority, could assign herself the most politically charged dissenting opinions. Justice Sonia Sotomayor is the heir to liberal lions like Justices William Brennan and Thurgood Marshall, using her dissents to imagine a world where the law serves the most vulnerable. Justice Elena Kagan is the Court’s master negotiator, whose talent for convincing Chief Justice John Roberts to think like a moderate led angry conservatives to refer to the nation’s highest tribunal as the “Kagan Court.”
Breyer, to the extent that he has much of a reputation at all, is mostly known by Supreme Court watchers for asking long, rambling, hypothetical questions that sometimes stretch for an entire page of the Court’s official oral argument transcripts.
Yet if Breyer often seems invisible, that’s probably by design. “Credit is a weapon,” Breyer told Slate’s Dahlia Lithwick in a December 2020 interview. One of the two most important lessons he learned from Senator Kennedy, Breyer said, is that “you give the other person the credit” for a joint accomplishment, to make it more likely they’ll be able to find common ground with you.
The other lesson he learned from his former boss? “If you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” Every dissenting opinion, Breyer said during a 2020 National Asian Pacific American Bar Association forum moderated by US District Judge Vince Chhabria, “is a failure.”
Because the justices’ internal deliberations are normally a tightly kept secret, there’s no way to know how often Breyer was able to transform a dissenting opinion into a 30 percent victory. But we do know of at least a couple of times when his penchant for quietly brokering deals and giving others credit may have had a tremendous impact in high-profile cases.
It is likely, for example, that affirmative action survived its first two encounters with the Roberts Court because of an unplanned but successful good cop-bad cop routine that Breyer and Sotomayor used to sway the Court’s longtime swing vote, Justice Anthony Kennedy. (Although it is unlikely to survive a third.)
Before his retirement in 2018, Kennedy sat at the center of the Supreme Court. Kennedy is conservative — he dissented in a 2003 case upholding a race-conscious admissions program at the University of Michigan’s law school — but he broke with his fellow Republicans on issues such as abortion, race, and LGBTQ rights just often enough to give liberals hope that his vote could be swayed.
When the Court first heard Fisher v. University of Texas at Austin (2013), Kennedy initially voted to strike down the race-conscious admissions program at Texas’s flagship university. Sotomayor, meanwhile, drafted a blistering dissent that drew on her very personal connection to the case.
Sotomayor, the first Latina woman to sit on the Supreme Court, once described herself as the “perfect affirmative action baby.” She was admitted to Princeton as an undergraduate, despite lower test scores than most of her classmates, and went on to graduate summa cum laude. As journalist Joan Biskupic wrote in a 2014 biography of Sotomayor, the justice authored “a dissenting opinion that only Sotomayor, with her Puerto Rican Bronx background, could write.” It was a “rare instance when she was giving voice to her Latina identity in a legal opinion at the Court.” And it was compared with the “attention-getting fiery” tone that was more often associated with the late Justice Antonin Scalia.
Sotomayor’s dissent, which was never published, unnerved many of her colleagues, who, according to Biskupic, were “anxious about how Sotomayor’s personal defense of affirmative action and indictment of the majority would ultimately play to the public.” With Kennedy among the justices taken aback by Sotomayor’s passion, Breyer stepped up to broker a compromise.
At Breyer’s urging, Kennedy drafted a narrow opinion that sent the case back down to the lower court for additional review. That compromise opinion wound up attracting the votes of seven justices, including Breyer and Sotomayor. In an even more surprising development, when the Fisher case reached the justices again in 2016, Kennedy drafted another opinion, joined again by Breyer and Sotomayor, which weakened affirmative action but did not kill it — leaving an outmaneuvered Justice Samuel Alito to complain in dissent that “something strange has happened since our prior decision in this case.”
A similar drama played out in National Federation of Independent Business v. Sebelius (2012), the first major challenge to the Affordable Care Act to reach the Supreme Court.
When the justices cast their initial votes in NFIB, they voted 5-4 along party lines to strike down Obamacare’s now-defunct individual mandate, which required most Americans to either carry health insurance or pay a penalty tax. More significantly, Roberts also intended to strike down the law’s protections for people with preexisting conditions. And, as he began to draft an opinion for the Court, he also took aim at the law’s Medicaid expansion, incorporating arguments that would have allowed states to opt out without consequence.
The law would have become a shell of its former self. Roberts was poised to deny coverage to millions of Americans.
But, as Biskupic reported, Roberts was “bothered” by the partisan divide in this high-profile case involving a Democratic president’s signature law, and he eventually reached out to Breyer and Kagan to see if they’d be willing to strike a deal.
Though Breyer and Kagan both initially voted to uphold the law’s Medicaid expansion in its entirety, they agreed to flip their votes on this issue — giving Roberts a patina of bipartisanship for his plans to make the Medicaid expansion optional. Roberts, meanwhile, voted to uphold the individual mandate as a valid exercise of Congress’s power to levy taxes, saving protections for people with preexisting conditions in the process.
What could have been a catastrophic loss for millions of Americans became a much more contained attack on the law.
Neither one of these deals should be understood as unqualified victories for liberals. Though the Court’s second Fisher decision didn’t invalidate affirmative action altogether, it placed a very high burden on universities that wish to consider race in their admissions policies — a high enough burden that many universities are likely to decide that it’s not worth the expense. Similarly, while NFIB did not gut the Affordable Care Act, it took a significant bite out of it. As of 2020, an estimated 2.3 million people do not have health coverage because of Roberts’s decision to let states opt out of the law’s Medicaid expansion.
But both cases did far less harm, from Breyer’s perspective, than they could have.
With Breyer gone, it will fall to Kagan — and, perhaps, to Sotomayor and to Breyer’s successor — to try to find ways to restrain the Court’s new 6-3 conservative majority. And it’s hardly certain that such a thing is even possible. Kennedy is no longer on the Court. And now that there are five justices to Roberts’s right, it’s not clear his vote will matter very much in the most politically charged cases.
Breyer wasn’t afraid to admit that judging is hard
One reason compromise is hard to find on the current Court is that many of the justices adhere to a philosophy that inherently makes concessions difficult.
In conservative circles, a theory known as “originalism” is very much in fashion. Originalism, in Barrett’s words, is the belief that “constitutional text means what it did at the time it was ratified and that this original public meaning is authoritative.”
This approach to constitutional interpretation often leads judges to claim they have found the only correct way to read a vague passage of the Constitution, and such an approach is hardly conducive to dealmaking. If you believe the Constitution’s meaning is fixed and that you have discovered its one true meaning, compromising with another judge who reads the Constitution differently means compromising with someone who is wrong about what the Constitution says.
Breyer, for his part, never claimed to have a single unified method of deciding cases. If anything, he rather ostentatiously resisted the idea that such a method could exist. In his 2005 book Active Liberty: Interpreting Our Democratic Constitution, Breyer embraced the idea that judging requires judgment, and the first judgment any judge needs to make before deciding a case is to choose among multiple legitimate methods of analyzing a legal text.
“All judges use similar basic tools to help them accomplish the task” of interpreting such a text, Breyer wrote. Judges “read the text along with related language in other parts of the document.” They consider the text’s “history, including history that shows what the language likely meant to those who wrote it.” Judges “look to tradition” indicating how this language is used in the law. They must take into account previous court decisions and other important precedents, and “try to understand the phrase’s purposes” or “the values that it embodies.” And they “consider the likely consequences of the interpretive alternatives, valued in terms of the phrase’s purposes.”
When I first read those words as a law student who was just beginning to get his head around how lawyers and judges understand legal texts, I wanted to throw Breyer’s book out a window. Breyer offers none of the certainty or false clarity that judges such as Scalia or Barrett offer when they evangelize originalism.
But after spending nearly two decades studying the law, I’ve come to appreciate Breyer’s honesty. Judging is hard, especially for those who sit on a Supreme Court that exists to answer questions that divided other judges. There is no one true way to read a document as full of ambiguity as the US Constitution, and Breyer has never pretended that there is.
Such uncertainty, Breyer suggested, demands a degree of “judicial restraint.” Quoting Justice Louis Brandeis, Breyer wrote that judges are “ill-equipped to make the investigations which should precede” lawmaking and must sublimate their own policy preferences to those of the people. “In a constitutional democracy, ‘a deep-seated conviction on the part of the people … is entitled to great respect.’”
That explains why, as Breyer’s former colleague Kenneth Feinberg writes, “nobody on the Supreme Court today is more deferential to the Congress and to congressional enactments than Justice Breyer.”
Indeed, one reason Breyer’s vote to limit Obamacare’s Medicaid expansion was so surprising — and why Biskupic’s reporting showing that this vote came about largely due to horse-trading is so clarifying — is that Breyer’s vote to limit Congress’s power in NFIB is so out of character with his overarching record. When the people’s elected representatives in Congress decided a certain policy made sense, Breyer was typically inclined to defer to that decision.
Breyer and democracy
When a dissenting justice believes one of the Court’s decisions is particularly egregious or ill-considered, they register their strong disagreement by reading a summary of their dissent from the bench during the ceremony when the Court formally hands down opinions.
Breyer read 23 such dissents from the bench, and it’s notable that the very first time he did so was in the United States v. Lopez (1995), a case where the Supreme Court took its first step away from more than half a century of deference to Congress’s decisions about how best to regulate the economy.
Lopez involved a federal law that made it a crime to “knowingly to possess a firearm at a place that the individual knows, or has reasonable cause to believe, is a school zone,” and a bare majority of the Court concluded the law was beyond Congress’s constitutional authority to “regulate commerce … among the several states.” Although guns in school zones do impact the economy, both by increasing violent crime that can disrupt commerce and by threatening a learning environment where young people are trained to succeed in the workplace, the majority deemed this connection between guns and economic activity to be too attenuated to sustain the law.
One of the majority’s primary concerns was that if the federal ban on guns in school zones were upheld, Congress’s power to regulate commerce could be used to justify virtually any law. “To uphold the Government’s contentions here,” Chief Justice William Rehnquist wrote for the Court, “we would have to pile inference upon inference in a manner that would bid fair to convert congressional authority under the Commerce Clause to a general police power of the sort retained by the States.”
The immediate practical implications of Lopez were virtually nonexistent. Not long after the decision was handed down, Congress amended the law to provide that guns were banned from school zones only if the gun “has moved in” or “otherwise affects interstate or foreign commerce” (meaning that any gun that has traveled across state lines should qualify), and the Supreme Court has, at least so far, allowed the amended statute to stand.
But the symbolic implications of Lopez were enormous because it revived a kind of constitutional thinking that many judges viewed as akin to black magic for much of the 20th century.
Beginning in the late 19th century, the Supreme Court created a number of rigid and often arbitrary limits on Congress’s power to regulate commerce, culminating in a 1918 decision striking down a federal child labor law. The reason the Court effectively allowed Congress to determine whether a particular law was a valid regulation of commerce for most of the 20th century is that it feared returning to an age of arbitrary judicial power, when economic laws were struck down because a majority of the Court disagreed with them.
Thus, while the Lopez majority feared that Congress’s powers might grow so big that they’d encroach on the prerogatives of the states, Breyer was more fearful that the Supreme Court’s power would grow so big that it would encroach on the prerogatives of the people’s elected representatives.
Breyer showed a similar instinct in his dissent in FDA v. Brown & Williamson Tobacco Corp. (2000), a case that foreshadowed many of the current majority’s attacks on the power of federal agencies to regulate private businesses.
The issue in Brown & Williamson was whether a federal law giving the FDA the authority to regulate any “drug” — a term that was defined to include “articles (other than food) intended to affect the structure or any function of the body” — allowed the FDA to regulate nicotine and thus place limits on the tobacco’s industry’s ability to market its products to children.
Though it had a very strong argument that nicotine met the law’s definition of a “drug” — nicotine, the FDA determined, “‘exerts psychoactive, or mood-altering, effects on the brain’ that cause and sustain addiction, have both tranquilizing and stimulating effects, and control weight” — a bare majority of the Court struck down the FDA’s tobacco regulations, largely due to concerns that upholding them would place too much power in the hands of the executive branch of government. (Congress amended the law in 2009 to explicitly give the FDA authority to regulate tobacco.)
Just as in Lopez, a conservative majority believed that it needed to impose limits on an elected branch of government — or, at least, on an agency that is accountable to an elected president — in order to prevent that branch from becoming too powerful. And, just as in Lopez, Breyer used his dissent to call upon his Court to have more respect for democracy. The proper remedy for a too-aggressive federal agency, Breyer wrote, isn’t a lawsuit. It is the electoral process itself.
“Insofar as the decision to regulate tobacco reflects the policy of an administration,” Breyer said in his Brown & Williamson dissent, “it is a decision for which that administration, and those politically elected officials who support it, must (and will) take responsibility.”
Breyer placed such great trust in democracy that he sometimes insisted that grand philosophical debates over the nature of our Constitution should be resolved by legislatures and not by judges. The Court’s decision in Parents Involved in Community Schools v. Seattle School District No. 1 (2007), for example, involved a harrowing dispute about the nature of racial justice and the legacy of the Court’s landmark school desegregation decision in Brown v. Board of Education (1954).
Parents Involved concerned two school districts that sought to reduce racial segregation within their schools. Rather than assigning all students to the school closest to their home, for example, a Seattle school district allowed students to rank which schools they would prefer to attend. If too many students listed a particular school as their first choice, students who would increase the racial diversity of that school were given a slight preference.
To Chief Justice Roberts, who wrote a plurality opinion on behalf of himself and three other justices, this practice was no less odious than Jim Crow discrimination because it required the government to classify some students based on their race. Roberts concluded his opinion with a rhetorical flourish: “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”
Justice John Paul Stevens, meanwhile, wrote a dissenting opinion accusing Roberts of missing the entire point of Brown v. Board of Education. “The history books do not tell stories of white children struggling to attend black schools,” Stevens wrote, adding that Roberts’s opinion “reminds me of Anatole France’s observation: ‘[T]he majestic equality of the la[w], forbid[s] rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.’”
But Breyer’s dissent would have left many questions regarding how to dismantle segregation — and regarding the true legacy of Brown — up to democratically elected officials. “The government may voluntarily adopt race-conscious measures to improve conditions of race even when it is not under a constitutional obligation to do so,” Breyer wrote, and courts have an obligation to respect the government’s decision to do so.
To be clear, Breyer does not question the legitimacy of Brown itself — he would not have deferred to a government’s decision to intentionally segregate its public schools. But, in the absence of the kind of egregious misconduct that characterized Jim Crow, Breyer would have given elected officials a great deal of leeway to decide how to build a pluralistic, racially integrated society.
When democracy isn’t enough
Breyer’s commitment to democracy is profound, but it is not absolute. And the retiring justice did feel a special obligation to police arbitrary governmental practices.
In recent years, for example, Breyer became the Court’s most outspoken opponent of the death penalty — in large part because of his belief that it cannot be fairly administered. “Death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual,” Breyer wrote in his dissenting opinion in Glossip v. Gross (2015), quoting from a 1972 opinion by Justice Potter Stewart. Rather than handing down death sentences exclusively to the worst criminals, such sentences are doled out to a “capriciously selected random handful” of the most serious offenders.
Breyer bolstered this argument with empirical studies showing that an offender is far more likely to be sentenced to die if their victim is white. Or if their victim is a woman. Or if the offender is merely unfortunate enough to be tried in the wrong location. “Within a death penalty State,” Breyer wrote in his Glossip dissent, “the imposition of the death penalty heavily depends on the county in which a defendant is tried.”
For these and other reasons, Breyer concluded that it is “highly likely that the death penalty violates the Eighth Amendment,” and he called upon his Court to receive full briefing on whether the death penalty should be allowed to exist at all.
Breyer was also, in Dahlia Lithwick’s words, “the fourth feminist” on the Supreme Court (a title Lithwick bestowed upon him while Ginsburg was still alive). He was, among other things, a staunch supporter of abortion rights. When the conservative Justice Kennedy cast a somewhat surprising vote to strike down an anti-abortion law in Whole Woman’s Health v. Hellerstedt (2016), he chose his friend and frequent negotiating partner Justice Breyer to write the opinion of the Court.
But Breyer never explained how he squared his full-throated support for abortion rights with his general view that judges should defer to democratically elected lawmakers. And it’s not like the two views are incompatible.
Ginsburg, for her part, grounded her support for abortion rights in the democratic principle that women should be able to “participate equally in the economic and social life of the Nation” — a principle that is undermined if women do not have full control over their own bodies — but Breyer never made a similar attempt to reconcile his willingness to overturn a legislature’s decision to restrict abortion with his overarching view that judges should protect democracy.
Instead, his opinion in Whole Woman’s Health emphasizes the kind of technocratic, cost-benefit analysis that one might expect from Breyer. When confronted with an abortion restriction, Breyer wrote, courts must “consider the burdens a law imposes on abortion access together with the benefits those laws confer.”
Breyer’s opinions in Glossip and Whole Woman’s Health were departures from his broader calls for “judicial restraint” — but such departures were the exception rather than the rule in his jurisprudence. Breyer saw himself as the caretaker of a Constitution built for a pluralistic society, where disagreements ordinarily should be resolved in the legislature and not the judiciary.
Concurring in Van Orden v. Perry (2005), in an opinion that angered many liberals because it upheld a religious display on government property, Breyer warned that religious disagreements can often divide society, and he saw his Court as charged with soothing those divisions. The Constitution’s provisions dealing with religion, Breyer wrote, “seek to avoid that divisiveness based upon religion that promotes social conflict, sapping the strength of government and religion alike.”
Breyer could have written similar words about many provisions of the Constitution. The retiring justice will leave behind a Court that is much more factional, and much more confident in its own authority to make decisions on behalf of the American people, than the one he joined a quarter-century ago. But Breyer, at least, remained committed to pluralism, compromise, and the democratic process that makes pluralism and compromise possible.