Federal Courts and Nominations

Justice Stephen Breyer Has Retired from the Supreme Court: Inside His 28 Years on the Bench

Breyer has stepped down after nearly three decades on the nation’s highest court, leaving behind a legacy of optimism and consensus building

Stephen Breyer, 83, relinquished his Supreme Court post at noon on Thursday after 28 years as an associate justice.

A San Francisco native, Breyer first established his legal career as a law clerk for Justice Arthur Goldberg. He then went on to serve as an administrative law professor at Harvard Law School, counsel to the U.S. Senate Committee on the Judiciary, and an appellate judge for nearly 14 years.

In 1994, he was nominated to the Supreme Court by President Bill Clinton.

Breyer served in the Supreme Court’s liberal minority for nearly three decades, leading him to author numerous dissenting opinions. Despite this, “he always remained optimistic,” Brianne Gorod, one of his former law clerks and chief counsel at Constitutional Accountability Center, wrote in an essay. Breyer is known as a “pragmatist” who incorporates “real-world context” into his judicial decision making process.

During his confirmation hearings, Breyer vowed to “remember that the decisions I help to make will have an effect upon the lives of many, many Americans,” and, according to New York University Law Professor Melissa Murray, Breyer upheld that, as he is someone who “really thought about what policy meant on the ground.” His deep-seated faith in institutions propelled him to intensely contemplate each ruling’s consequences for Americans.

He “does everything he can to find common ground,” Justice Elena Kagan wrote in the Supreme Court’s press release about his retirement.

Breyer often played the role of a consensus-builder, pulling on negotiating skills he learned during his tenure assisting the U.S. Senate Committee on the Judiciary. Behind the scenes, he brokered compromises, saying in a Slate interview that working for Sen. Ted Kennedy on the committee taught him to get the person you disagree with talking, “eventually — it happens almost always — they’ll say something you agree with.”

Breyer is known for his long, hypothetical questions during oral argument, which Neal Katyal, former acting U.S. Solicitor General, told PBS NewsHour allows “a conversation between justice and advocate.”

During his tenure, Breyer ruled against restricting the right to access abortion, including authoring the majority opinion that struck down a Nebraska law banning late-term abortions and later, wrote against provisions in a Texas law that required doctors who perform abortions to have admitting privileges at nearby hospitals. In his opinion, he noted that these provisions would “erect a particularly high barrier for poor, rural, or disadvantaged women.”

Most recently, Breyer, joined by justices Sotomayor and Kagan authored a passionate dissent to Dobbs v. Jackson Women’s Health Organization, which overturned the constitutional right to abortion.

Breyer typically voted in favor of environmental protections, including strengthening the Clean Water Act with his 2020 majority opinion and in 2007, voted to grant the EPA permission to regulate greenhouse gas emissions.

Twice before the court, he contemplated the constitutionality of the death penalty, authoring a dissent with Justice Ruth Bader Ginsburg in 2015 that ended with, “I believe it highly likely that the death penalty violates the Eighth Amendment.”

Described by Chief Justice John Roberts as “a tireless and powerful advocate for the rule of law — in the United States and abroad,” Breyer concludes over 40 years of judicial service to the country Thursday.

Justice Breyer is succeeded by Ketanji Brown Jackson, who was confirmed by a 53-47 Senate vote in April.

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