Federal Courts and Nominations

Breyer to Step in as Chief Dissenter?

By Lawrence Hurley

WASHINGTON – With Justice John Paul Stevens now retired, Justice Stephen G. Breyer looks ready to replace his former colleague as dissenter-in-chief on the U.S. Supreme Court.

Some legal observers think he could even take on a more prominent role as the leading liberal voice on the court.

Stevens, who served on the court for nearly 35 years, was long known for being the justice most likely to write dissenting opinions. It was just one of many roles associated with him, another being his skill as a strategist. But even before Stevens left the court at the end of last month, Breyer was exhibiting a similar inclination to write at length – and often – in dissent. In the term that just ended, only Stevens wrote more dissents than Breyer, 12 versus eight respectively. In contrast, five of the justices wrote four or fewer dissenting opinions. The statistics are similar if extended over the last five terms, according to Supreme Court website Scotusblog.com.

Last term, Stevens was also the only justice who was in the minority more than Breyer: 22 times compared with Breyer’s 19.

Breyer’s willingness to air his dissenting views in public extended beyond the court’s rulings in argued cases. The 71-year-old also wrote a spirited dissent when the court granted a stay that prevented California’s Proposition 8 trial from being televised.

“I believe this court should adhere to its institutional competence, its historical practice, and its governing precedent – all of which counsel strongly against the issuance of this stay,” he wrote.

Later in the year, Breyer also penned a memorandum publicly criticizing the court for closing its grand front entrance to the public.

Appointed by President Bill Clinton in 1994 after serving on the 1st U.S. Circuit Court of Appeals for 14 years, Breyer’s early years on the court were characterized in part by his deference to his more senior colleagues, including Chief Justice William H. Rehnquist, court experts say.

Breyer’s increasing outspokenness has coincided with the ascendancy of Chief Justice John G. Roberts Jr., who was appointed in 2005. He has been “probably the most vocal critic of muscular rulings by the Roberts court that pushed the law sharply to the right,” said Doug Kendall, president of the Constitutional Accountability Center, a left-leaning legal think tank.

Pamela Harris, executive director of the Supreme Court Institute at Georgetown Law Center, said that Breyer might be preparing to at least try to take on Stevens’ mantle. Only Justice Ruth Bader Ginsburg, appointed a year earlier, has longer tenure on the court among the liberal ranks. Justice Sonia Sotomayor has only served for a year and Stevens’ replacement, Elena Kagan, still awaits Senate confirmation.

If Breyer, who was a professor at Harvard Law School before he was appointed to the 1st Circuit, is seeking a more prominent role, it’s not a move that many would have predicted, Harris said.

“There have been times when he has seemed more idiosyncratic in his views and less interested in playing a strategic or leadership role,” she said.

But she noted that “a lot of people didn’t see it coming” when Stevens first became more prominent.

Kendall expressed doubt about whether Breyer could effectively replace Stevens when it comes to engaging in intellectual battle with the conservative justices. Known for his pragmatic approach to the law, Breyer is unlikely to replicate Stevens in “taking on directly the arguments made by the conservatives over the meaning of the Constitution,” said Kendall.

Still, Breyer has not just dissented on paper, he has also been vocal in criticizing the majority by reading summaries of his dissenting opinions from the bench, something justices do relatively rarely to signify the intensity of their opposition.

In the last term, he did so in three high-profile cases, including two decided on the last day. Some see those public utterances as a sign that Breyer is not just a passionate dissenter but also someone who wants to take the fight to the conservatives.

First, on June 21, he spoke out when the court ruled 6-3 that a Los Angeles group’s political advocacy for foreign groups designated by the government as terrorist organizations could potentially run afoul of a federal law banning providing material support to terrorist groups. Holder v. Humanitarian Law Project, 2010 DJDAR 9347.

Breyer stated his concern that when the First Amendment is pitted against national security, the latter should not always prevail. “That never has been, and should not be, the law,” he said.

Breyer then spoke from the bench twice on the final day of the term, beginning with the court’s 5-4 decision in which it concluded that the Second Amendment right to bear arms applies to state and local regulations. McDonald v. Chicago, 2010 DJDAR 9899.

He was scathing of the conservative majority, questioning the idea that the right to bear arms is a fundamental right that should be applied to the states under the due process clause of the Fourteenth Amendment.

Breyer then spoke at length minutes later when the court issued another ruling in which the majority found that a section of the corporate reform and accounting law passed by Congress in the aftermath of the Enron Corp. scandal is unconstitutional. Free Enterprise v. Public Company Accounting Oversight Board, 2010 DJDAR 9997.

Georgetown’s Harris, who was in the courtroom on the last day of the term, described Breyer’s performance that day as “very significant” in part because “his spoken remarks were very strong and really well done.”

Vince Chhabria, who clerked for Breyer in the 2002 term and is now deputy city attorney at the San Francisco City Attorney’s Office, downplayed the idea that Breyer’s dissents are a sign that he has become more outspoken.

Breyer has always been willing to speak out on issues he cares most strongly about, Chhabria said.

“It depends on the strength of his feelings on the subject,” he added.

Chhabria pointed to Breyer’s sharp dissent in 2007 when the court struck down school race integration programs in Seattle and Louisville, Ky. as an earlier example. Parents Involved in Community Schools v. Seattle School District No. 1, 2007 DJDAR 9798.

But it was not just in the court’s written opinions that Breyer’s voice was prominent in the 2009 term. In the sharp debate in January over whether the Prop. 8 trial in San Francisco should be televised, Breyer again led the dissenting liberals. In a 10-page opinion, Breyer questioned whether the court even had the authority to intervene over what was essentially a question of judicial administration. Hollingsworth v. Perry, 2010 DJDAR 665.

Even more unusual was the incident in May, in which Breyer publicly dissented when it was announced that the court’s famous front entrance would be closed to the public for security reasons.

“I think the change is unfortunate and I write in the hope that the public will one day in the future be able to enter the court’s Great Hall after passing under the famous words ‘Equal Justice Under Law,'” Breyer wrote.

Both the Prop. 8 and door closure issues were not typical Supreme Court business and could both be viewed as matters in which the chief justice, as the head of the judiciary, might normally expect “a fair bit of deference,” Georgetown’s Harris said.

As Kendall of the Constitutional Accountability Center noted, Breyer “has certainly been willing to express his disagreement” with the chief justice.

Whether or not Stevens’ departure leads to a greater role for Breyer remains an open question, but his former clerks believe he is capable of taking on such a role.

“Justice Breyer would be a very good candidate to fill the void as the leading progressive voice,” Chhabria said.

Deanne E. Maynard, who chairs the Supreme Court practice group at Morrison & Foerster and clerked for Breyer during his first term, said his outgoing personality could also help him win the all important fifth vote, which often tends to be Justice Anthony M. Kennedy.

“The justice’s personality is well suited to being a leader,” she said. “He would be very comfortable in that role.”

When Stevens announced his retirement, Harris, who clerked for him, admits she didn’t immediately see an obvious successor.

“I wonder whether it could be Justice Breyer,” she said. “It’s well worth watching.”

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