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Stephen Breyer, pragmatic liberal, will retire at end of term

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Justice Stephen Breyer, a devoted pragmatist and the senior member of the Supreme Court’s liberal wing, will retire from the court at the end of the 2021-22 term, NBC News reported on Wednesday. During a nearly 28-year career on the court, Breyer shunned rigid approaches to legal interpretation, often seeking functional rulings with an eye toward real-world consequences. He wrote major opinions favoring abortion rights, demarcating the separation of powers, and turning back a challenge to the Affordable Care Act. In his later years, he repeatedly questioned the constitutionality of the death penalty. His retirement opens the door for President Joe Biden to fulfill a campaign promise and nominate the first Black woman to the Supreme Court.

The decision by the 83-year-old justice to step down is not surprising. Although Breyer is apparently in good health and by all accounts enjoys his job, Democrats began calling for him to retire shortly after the 2020 election so that President Joe Biden could nominate a younger judge to take his place. When Biden does nominate a successor, the confirmation battle that follows is likely to divide along partisan lines. And although a Biden nominee is not likely to change the ideological balance on a court currently dominated by conservatives, the nomination hearings could nonetheless prove contentious given the polarized climate that now surrounds every Supreme Court vacancy.

When he was nominated to the Supreme Court by then-President Bill Clinton in 1994, Breyer had spent the previous 14 years as a judge on the Boston-based U.S. Court of Appeals for the 1st Circuit. Breyer had also been a candidate to fill the vacancy created by the retirement of Justice Byron White one year earlier. But Breyer had been hit by a car while riding his bicycle shortly before he came to Washington to meet with Clinton in June 1993 and was still recovering from injuries that included broken ribs and a punctured lung. The interview reportedly did not go well, and Clinton chose a 60-year-old Washington, D.C., appeals court judge named Ruth Bader Ginsburg to fill White’s seat.

Breyer would get another shot less than a year later, after Justice Harry Blackmun announced his plans to step down after the court’s 1993-94 term. According to reporting by CNN in 2014 based on the papers of Diane Blair, a close confidante of the Clintons, Bill Clinton considered both Richard Arnold, a fellow Arkansan serving as a judge on the U.S. Court of Appeals for the 8th Circuit, and Bruce Babbitt of Arizona, then the secretary of the interior, before nominating Breyer – releasing the decision so quickly that Breyer did not have time to travel to Washington for the announcement. After a week of hearings that the New York Times characterized as intentionally “tame,” Breyer was confirmed by a vote of 87 to 9 on July 29, 1994.

A philosophy of practicality

As a justice, Breyer’s demeanor and questions during oral arguments often conjured up comparisons to an absent-minded professor. One legendary hypothetical, in 2003, posited that a sign barring “all animals” from a park would not include a “pet oyster.” A year later, in a case involving federal efforts to ban medical marijuana, Breyer raised the specter of “tomato children that will eventually affect Boston.”

But if Breyer – who majored in philosophy as an undergraduate at Stanford University – sometimes came across as an academic on the bench, he was at the same time both a member of the court’s liberal wing and, as his former law clerk Kevin Russell told USA Today, “unapologetically pragmatic in thinking that it’s the court’s job to help make government work for real people.”

Breyer’s penchant for pragmatism was on full display in his 2014 opinion for the court in National Labor Relations Board v. Noel Canning, in which the justices unanimously agreed that President Barack Obama violated the Constitution when he appointed three commissioners to the National Labor Relations Board while the Senate was in a brief recess. The decision had something for everyone: It was clearly a victory for both the company challenging the appointments and the conservative and business groups supporting the company, but it was also at least partially a favorable ruling for the Obama administration, because the majority upheld the president’s power to make other recess appointments, as long as they are made during recesses that last at least 10 days.

In an opinion joined in full by Justices Anthony Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Breyer, who spent a year as the chief counsel to the Senate Judiciary Committee before becoming a judge, stressed that the justices were reluctant “to upset the compromise and working arrangements that the elected branches of Government themselves have reached,” particularly when the Supreme Court had not previously weighed in on the meaning of the Constitution’s recess appointments clause. Along those lines, although the court’s ruling meant that any decisions in which the three commissioners participated while they were recess appointees would be invalid, nothing in the ruling suggested that it would invalidate other, earlier recess appointments.

Breyer concluded that the constitutionality of a recess appointment hinges primarily on the length of the recess, rather than whether the recess occurs between or during sessions of Congress. He explained that the purpose of the recess appointments clause is to ensure that the government can operate even if the Senate is not in session to confirm nominees, so it doesn’t matter what label the session carries. For the same reason, Breyer continued, the president can use his recess appointment power to fill any vacancies that exist when the Senate is in recess; the president is not limited to vacancies that are created while the Senate is out of town. However, Breyer added, the Senate can also prevent the president from making recess appointments by holding “pro forma” sessions – sessions at which no actual work is accomplished – every three days.

A pivotal vote in religion cases

Religion was another area in which Breyer, who is Jewish, sought to reach a solution that worked, even if it did not necessarily hew closely to legal orthodoxy. On a single day in 2005, Breyer provided the pivotal vote in a pair of cases challenging public displays of the Ten Commandments. In one case, Breyer agreed with the court’s conservative wing to uphold the display; in the other, he sided with the court’s liberals to strike down the display.

Van Orden v. Perry involved a monument inscribed with the commandments on the grounds of the Texas state capitol. The Supreme Court rejected an argument that the monument violated the Constitution, which bars the government from “establishing” a religion. In a concurring opinion, Breyer agreed with Chief Justice William Rehnquist and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas that the monument should be allowed to remain. Breyer described it as a “borderline case” that required the court to exercise “legal judgment” and consider “the basic purposes of the First Amendment’s Religion Clauses themselves” rather than apply any specific legal test to determine whether the monument passed constitutional muster.

The monument had stood on the grounds of the capitol for 40 years without any objection, Breyer observed, suggesting that members of the public regarded “the religious aspect of the tablets’ message as part of what is a broader moral and historical message.” “That experience,” Breyer reasoned, “helps us understand that as a practical matter of degree this display is unlikely to prove divisive.” By contrast, Breyer continued, a ruling that would require the removal of the monument could “create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

He reached a different result in McCreary County v. American Civil Liberties Union. In that case, Breyer (as well as Justice Sandra Day O’Connor and liberals John Paul Stevens and Ruth Bader Ginsburg) joined an opinion by Justice David Souter that held that the display of a Ten Commandments plaque on the walls of two Kentucky courthouses was unconstitutional. Souter’s opinion agreed with the trial court that the display was motivated by “predominantly religious” reasons.

Fourteen years later, Breyer joined Justice Samuel Alito’s opinion for the majority in American Legion v. American Humanist Association, allowing a 40-foot-tall cross, erected in a Washington, D.C., suburb shortly after World War I to honor soldiers killed in battle, to remain in a traffic circle. Breyer wrote a brief concurring opinion, this time joined by Kagan, in which he reiterated his view that “there is no single formula for resolving Establishment Clause challenges.” Instead, Breyer emphasized, the Supreme Court should “consider each case in light of the basic purposes that the Religion Clauses were meant to serve” – “assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its ‘separate spher[e].’”

Breyer indicated that, from his perspective, the decision was a narrow one. The majority had permitted the cross to remain in place, he suggested, because of its history and the nearly 100 years that it had stood without any controversy. Indeed, he observed, requiring the cross to be removed at this point “would signal ‘a hostility toward religion that has no place in our Establishment Clause traditions.’” “A newer memorial, erected under different circumstances, would not necessarily be permissible under this approach,” Breyer cautioned.

A frequent author on reproductive rights

Perhaps because of his straightforward style, Breyer was the author of three landmark decisions striking down state laws that sought to restrict access to abortion.

The first came in 2000, when Breyer – then the junior justice on the court – wrote for a five-justice majority in Stenberg v. Carhart, striking down Nebraska’s ban on a procedure the state referred to as “partial birth” abortion. During the controversial procedure, which is generally performed in the later stages of pregnancy, the fetus is partially removed from the uterus intact, rather than removing it using the suction method commonly employed earlier in pregnancy, when the vast majority of all abortions take place. Breyer began his description of the facts of the case by acknowledging that the discussion that would follow “may seem clinically cold or callous to some, perhaps horrifying to others.” But, he continued, there is no other way “to acquaint the reader with the technical distinctions among different abortion methods and related factual matters, upon which the outcome of this case depends.”

Breyer stressed that because the Nebraska law did not have any exception to protect the health of the mother, it was unconstitutional. It was also unconstitutional, he added, because it imposed an “undue burden” on a woman’s right to end her pregnancy — the standard by which the court evaluates abortion restrictions. The law, Breyer wrote, might have been intended to ban one specific type of late-term abortion procedure, but the broad language of the law actually banned another, far more common procedure used for second-trimester abortions. The breadth of the ban – and the fact that any physician who performed second-trimester abortions would fear criminal prosecution – rendered it an undue burden.  

Seven years later, with O’Connor (who joined Breyer’s opinion in Stenberg) now retired and replaced by Alito, Breyer joined a dissent in Gonzales v. Carhart, in which the Supreme Court upheld a federal law banning so-called partial-birth abortions. But in 2016, he wrote for the majority in another major ruling on abortion, Whole Woman’s Health v. Hellerstedt, that struck down two provisions in a Texas law that sought to regulate abortion providers in the state. One provision would have required doctors who perform abortions to have the right to admit patients at nearby hospitals; the second provision would have required abortion clinics to have facilities comparable to an outpatient surgery center. Opponents of the law contended that the two provisions would have shut down 75% of the state’s clinics.

In an opinion that was joined by Kennedy (who had been on the opposite side from Breyer in the partial-birth abortion cases), as well as Ginsburg, Sotomayor and Kagan, Breyer concluded that despite the state’s contention that it had enacted the law to protect the health and welfare of women seeking abortions, neither provision provided any real health benefits for women. However, Breyer continued, the provisions did place a “substantial obstacle” in the path of women seeking an abortion during the early stages of pregnancy and therefore were an undue burden on access to abortion.

In 2020, with Kennedy now retired, the Supreme Court in June Medical Services v. Russo struck down a similar admitting-privileges requirement in Louisiana. In an opinion joined by the court’s other three liberals, Breyer stressed that the requirement was “almost word-for-word identical to Texas’ admitting-privileges law.” The Louisiana law, Breyer observed, would leave just one physician performing abortions in the entire state, and only for women in the early stages of pregnancy. And it would impose a burden on women seeking an abortion, Breyer added, even though it would not provide any real health benefits for such women.

Breyer’s opinion in June Medical, however, did not stand as the opinion of the court. Roberts provided the crucial fifth vote to invalidate the law (even as he reiterated that he still believed that Whole Woman’s Health was wrongly decided) but he did not join Breyer’s opinion. Instead, he wrote a solo concurrence disagreeing with Breyer and the liberals about how the “undue burden” test should be applied.

As Breyer departs the bench, however, there is every indication that, with recent changes to the court’s make-up, the court’s abortion jurisprudence is likely to change as well. In the fall and winter of 2021, a divided court turned away pleas from abortion providers to block a Texas law, known as S.B. 8, that bans almost all abortions in the state. The court left S.B. 8 in place while a challenge to the law continues in the lower courts, even though the law clearly conflicts with the Supreme Court’s landmark decisions in Roe v. Wade and Planned Parenthood v. Casey.  

And in December, a majority of the court appeared ready to uphold a Mississippi law that (with limited exceptions) bans abortions after the 15th week of pregnancy. At the oral argument in Dobbs v. Jackson Women’s Health Organization, Breyer (along with Justices Sonia Sotomayor and Elena Kagan, both appointed by President Barack Obama) emphasized the importance of stare decisis, the idea that courts should not overrule their earlier cases except in narrow and extraordinary circumstances. Overruling Roe and Casey, Breyer suggested, without “the most compelling reason” would “undermine the court’s legitimacy beyond any serious question.”

Questioning capital punishment

Like Kagan, Breyer was arguably a member of the more pragmatic faction of the court’s liberal bloc, and he declined to join some of the more fiery dissents penned by Sotomayor and Ginsburg. But he too could display a flash of passion, particularly when it came to the death penalty.

In 2015, the Supreme Court issued its decision in Glossip v. Gross, a challenge to Oklahoma’s use of midazolam, a sedative normally used to treat anxiety, in its lethal injection protocol. The inmates contesting the state’s use of the drug argued that the use of midazolam as the first of three drugs to execute prisoners violates the Constitution’s ban on cruel and unusual punishment because it cannot reliably render the inmate unconscious. If the midazolam doesn’t do its job, the inmates contended, a prisoner being executed will suffer serious pain from the third drug (which stops the heart), but no one will know that because the second drug prevents a person from moving at all.

By a vote of 5-4, the Supreme Court rejected the inmates’ challenge. In a decision by Alito, the majority stressed that the inmates could win only if they could show that the state has a better option than midazolam – which they had not done. Moreover, the majority added, the inmates had also not demonstrated that using midazolam was “sure or very likely to result in needless suffering.”

Sotomayor wrote the main dissent, which Breyer, Ginsburg and Kagan all joined. But Breyer also wrote a 44-page dissent of his own, which only Ginsburg joined and which Breyer took the relatively rare step of reading from the bench, a move that signaled the extent of his disagreement with the majority’s decision. Breyer’s dissent evoked a famous statement from Blackmun, who wrote in 1994 – just a few months before his retirement and replacement by Breyer – that he would “no longer … tinker with the machinery of death.” Breyer suggested that “rather than try to patch up the death penalty’s legal wounds one at a time,” he would “ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

In 1976, Breyer explained, the Supreme Court had upheld the death penalty because it believed that it could “be applied reliably and not arbitrarily.” But in practice, Breyer continued, the death penalty now suffers from “three fundamental constitutional defects”: “serious unreliability,” “arbitrariness in application” and “unconscionably long delays that undermine the death penalty’s penological purpose.” As a result, and in light of his “own 20 years of experience on this Court,” Breyer concluded, he now believed that the death penalty, “in and of itself,” likely violates the Eighth Amendment’s ban on cruel and unusual punishment.

After his Glossip dissent, Breyer continued to press his critique in other cases, becoming in the eyes of some experts the court’s leading opponent of the death penalty. And when the Trump administration resumed executions in 2020 after a 17-year pause at the federal level, Breyer wrote two dissents protesting the court’s emergency orders allowing those executions to proceed. He reiterated the issues he raised in Glossip and again called for the court to directly re-evaluate the constitutionality of the death penalty.

“A modern system of criminal justice must be reasonably accurate, fair, humane, and timely,” he wrote in Barr v. Purkey last July. “Our recent experience with the Federal Government’s resumption of executions adds to the mounting body of evidence that the death penalty cannot be reconciled with those values.”

An emotional dissent on school integration

Breyer displayed another flash of emotion when he dissented from the bench in Parents Involved in Community Schools v. Seattle School District No. 1, which involved challenges to two school districts’ consideration of race in their efforts to create integrated schools. By a vote of 5-4, the Supreme Court agreed with the challengers that the programs in Seattle and metropolitan Louisville violated the Constitution. In his opinion, Roberts famously wrote that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”

In his dissent, Breyer wrote that Roberts’ opinion paid “inadequate attention” to Supreme Court precedent that had permitted local communities to adopt narrowly tailored desegregation plans. The result, Breyer predicted, will “obstruct efforts by state and local governments to deal effectively with the growing resegregation of public schools” and “threatens to substitute for present calm a disruptive round of race-related litigation.”

When the court issued its opinion in the case, Breyer spoke from the bench for over 20 minutes – longer than Roberts, who had the main opinion, and Kennedy, who read from his concurring opinion, combined. With his voice occasionally rising, Breyer stressed that the Supreme Court “has approved measures that were far more race-conscious” than the ones that it was now striking down “to combat the harmful separation in the schools.”

In a quieter voice, Breyer referred to the 2005 death of Rehnquist, whom Roberts succeeded, and the retirement of O’Connor, whom Alito replaced in 2006. “It is not often in the law,” Breyer observed, “that so few have so quickly changed so much.” “This is a decision,” Breyer cautioned a few minutes later, “that the court and the nation will come to regret.”

Pressure to retire

As early as 2011, Ginsburg – then in her late 70s – was the primary target of calls for her to retire so that former President Barack Obama could nominate a younger, liberal-leaning successor. Ginsburg resisted that pressure – asking the Associated Press in 2014, “who do you think could be nominated now that could get through the Senate that you would rather see on the court than me?” – which sometimes extended to Breyer as well. After Ginsburg’s death in 2020, the New York Times reported on a plan hatched during the Obama administration by Walter Dellinger, a former acting U.S. solicitor general and Democratic insider, to lure Breyer – who has been known to give speeches entirely in French – into retirement by appointing him as the U.S. ambassador to France. Like the efforts to persuade Ginsburg to resign, the plan never went far.

Retirement discussions were tabled during the Trump administration, but the retirement spotlight returned to Breyer and intensified after Democrats won both the White House and the Senate in the 2020 elections. In a December 2020 interview with Slate’s Dahlia Lithwick, Breyer demurred when asked about his support for term limits for justices, saying “it is too close to something that is politically controversial. I mean, eventually I’ll retire, sure I will. And it’s hard to know exactly when.”

Amid that pressure, Breyer was the author of one of the highest-profile rulings of the 2020-21 term: the court’s decision in California v. Texas, rejecting an effort to strike down the Affordable Care Act. By a vote of 7-2, the court ruled that neither the group of states challenging the ACA nor two individual plaintiffs had a legal right to sue, known as standing. The court did not reach the broader issues on which the challengers had asked it to weigh in, involving the constitutionality of the ACA’s mandate that virtually all Americans purchase health insurance in the wake of Congress’ decision to reduce the penalty for failing to buy insurance to $0 and the viability of the rest of the ACA if the mandate were deemed unconstitutional.

Addressing the individual plaintiffs first, Breyer noted that the men alleged that they were injured because they had to spend money every month to comply with the ACA’s command to buy health insurance. The men’s “problem lies in the fact,” Breyer explained, that although the ACA tells them to buy health insurance, it “has no means of enforcement.” And as for Texas and the other states with Republican leaders, Breyer continued, they had failed to link the mandate to buy health insurance to any additional costs that they would not otherwise have to pay.

In the same week as the decision in the ACA case, progressives made their call for Breyer to retire even more explicit. A group of 18 law professors signed an ad in the New York Times urging Breyer to retire, writing that although “Breyer is a remarkable jurist,” “it is best for the country that President Biden have the opportunity to nominate a successor without delay.” And in a full-page advertisement in Politico, 13 liberal advocacy groups implored Breyer to “immediately announce his intent to retire from the bench” and allow Biden to appoint his successor while Democrats retain control of the Senate.

The ads followed an interview by Sen. Mitch McConnell, R-Ky., who told conservative radio host Hugh Hewitt that it was “highly unlikely” that a Republican-controlled Senate would confirm a Biden nominee in 2024 and that “we’d have to wait and see” whether Republican senators would allow a Biden nominee to go forward in 2023. As Senate majority leader in 2016, McConnell refused to hold a hearing for then-Judge Merrick Garland, Obama’s nominee to fill the vacancy created by the death of Justice Antonin Scalia.

In September 2021, Breyer – a prolific author – released a new book, The Authority of the Court and the Peril of Politics. Based on a lecture that he had given at Harvard earlier in the year, Breyer emphasized in the book that the Supreme Court’s authority comes from the public’s willingness to respect and follow the court’s decisions, even when it disagrees with them. If the public regards the court and its decisions as political, Breyer stressed, it will be less likely to adhere to that authority. The book was intended in part as a response to proposals to make changes to the Supreme Court by (among other things) increasing the number of justices: Breyer cautioned that would-be reformers should “think long and hard before embodying those changes in law.”

The book further stoked calls for Breyer to retire, with progressives criticizing (to put it mildly) the book as an overly rosy and naïve depiction of the court. One reporter wrote that the book “appears, at times, to have been written in a different era than the one in which we live.”

The future for Breyer and the court

It’s not clear what Breyer’s plans are when he leaves the bench. Some of Breyer’s former colleagues, most notably retired Justice David Souter, have occasionally served as visiting judges on federal appeals courts after stepping down from the Supreme Court. Breyer could also opt to add to his collection of legal scholarship, which includes two books written before he joined the Supreme Court and four books published as a justice. And Breyer has a wide range of interests outside the law that could keep him busy in retirement. He is a Renaissance man of sorts, who (among other things) sits on the jury for the Pritzker Architecture Prize, one of the most prestigious awards in the field.

Attention now shifts to the question of Breyer’s replacement. During the 2020 presidential campaign, then-candidate Biden pledged to nominate the first Black woman to the Supreme Court. Two of the names often mentioned as possible contenders are Leondra Kruger, a justice on the California Supreme Court, and Ketanji Brown Jackson, who served for eight years as a federal trial judge before being confirmed to the U.S. Court of Appeals for the District of Columbia Circuit on June 17. Breyer himself is familiar with both women: Kruger argued 12 cases before the Supreme Court before becoming a judge, while Jackson served as one of Breyer’s law clerks.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Stephen Breyer, pragmatic liberal, will retire at end of term, SCOTUSblog (Jan. 26, 2022, 12:46 PM),