Federal Courts and Nominations

Justice Stephen Breyer, Pragmatist & Consensus-Seeker, Will Retire

During his 2020 presidential campaign, President Joe Biden said he would nominate the first Black woman to the high court when the opportunity arose.

Justice Stephen Breyer, a pragmatic jurist whose opinions over the last 27 years are infused with a commitment to making democracy work, is retiring, according to media reports, opening a spot for President Joe Biden’s first appointment to the U.S. Supreme Court.

Breyer’s successor would not change the ideological balance on the court, which currently has a 6-3 conservative majority. A Biden appointee, if confirmed, would join the court’s two remaining Democratic appointees on the left, Justices Sonia Sotomayor and Elena Kagan.

During his 2020 presidential campaign, Biden said he would nominate the first Black woman to the high court when the opportunity arose. Wednesday’s news immediately reinvigorated earlier speculation about who would be Biden’s choice.

The list of potential nominees includes: Judge Ketanji Brown Jackson of the U.S. Court of Appeals for the D.C. Circuit; California Supreme Court Justice Leondra Kruger; Sherrilyn Ifill, head of the NAACP Legal Defense and Educational Fund; New York Attorney General Letitia James; Melissa Murray of New York University Law School; and U.S. District Judge Leslie Abrams Gardner of the Middle District of Georgia, the sister of voting rights activist Stacey Abrams.

Breyer, who was appointed by Democratic President Bill Clinton in 1994, has been a moderate liberal on an increasingly conservative court. He succeeded the late Justice Harry Blackmun, who authored the 7-2 majority opinion in the landmark abortion decision Roe v. Wade. Breyer has been a staunch supporter of abortion rights during his tenure on the bench and has written key majority opinions in that controversial area, including recent cases such as Whole Woman’s Health v. Hellerstedt and June Medical Services v. Russo, both of which struck down state restrictions on abortion clinics and physicians.

With the 2020 election of Biden and narrow Democratic control of the U.S. House and U.S. Senate, Breyer faced mounting pressure by organizations and others on the left to retire before the mid-term 2022 elections. They feared that if Democrats lost control of the Senate, a Biden Supreme Court nominee would face insurmountable Republican opposition. And, even after the midterm elections, they raised the specter of the late Justice Ruth Bader Ginsburg’s resistance to retire in time for former President Barack Obama to name her successor.

Ginsburg’s death in September 2020 provided then President Donald Trump with his third Supreme Court nomination—Justice Amy Coney Barrett, who cemented the 6-3 conservative majority on the court.

Besides his pragmatic approach to interpreting statutes and the Constitution, Breyer, 83, is also known for injecting humor into the dullest of Supreme Court arguments with seemingly outlandish hypothetical questions that actually tested the strength and weaknesses of an advocate’s argument. He also, perhaps more than any of his colleagues, sought to find consensus on the most divisive issues, looking for what he called “the play in the joints” of a case that could lead to common ground.

In a conversation at the National Constitution Center, he was asked to explain his pragmatism. He said:

“Well, it’s not sitting there doing whatever you think is good. When you have a statute and the words can be interpreted in two or three different ways, I think it’s probably a desirable thing, among other things like history, purposes, consequences, to try to evaluate it from the point of view of what a reasonable legislator writing this statute would have thought these words would achieve. Even by making up a reasonable legislator, you would get a more rational system of law. And the Constitution too. This is not just a document about democracy and organizing government. It’s going to work and work for a long time. You try to move in a direction of something that will work.”

Pratik Shah, partner at Akin Gump Strauss Hauer & Feld and a former Breyer clerk, said,

“That more nuanced, pragmatic approach—exemplified in Justice Breyer’s opinions and explained in his book ‘Active Liberty’—accounts for our society’s evolving problems in a manner that originalism fails to do. And it derives from Justice Breyer’s fundamental belief, grounded in a faith and optimism we can all use now more than ever, that our democracy is better off when all its citizens are empowered to participate.”

Before his death in 2016, Justice Antonin Scalia and Breyer often went “on the road” together with public discussions of their different approaches to interpretation: Scalia, a proponent of originalism, and Breyer, the pragmatic advocate. Always civil, often funny, they seemed to enjoy the back and forth of their competing views, with neither one conceding an inch.

Another former clerk, Aaron Panner, partner at Kellogg, Hansen, Todd, Figel & Frederick, described Breyer as a “consensus builder by nature,” but one who was unable to fully achieve that on a court.

“For a time, it looked like the center might be inching towards him,” Panner said. “But with the resignation of Justice [Anthony] Kennedy, to say nothing of the death of Justice [Ruth Bader] Ginsburg, that moment ended. He was in dissent a lot in the ‘big’ cases of his career. And even in areas of law where he had unique insight—I think of antitrust law—he was increasingly in the minority.”

Breyer was born and raised in San Francisco where his father was legal counsel to the San Francisco Board of Education and his mother was active in public service. He attended Stanford University, graduating with a degree in philosophy, and went on to Oxford University as a Marshall Scholar. He returned home to enter Harvard Law School and graduated magna cum laude.

After law school, Breyer clerked for U.S. Supreme Court Justice Arthur Goldberg. He moved from his clerkship to the Department of Justice as a special assistant to the assistant U.S. attorney general for antitrust. In 1967, he returned to Harvard Law School to teach until joining the Watergate Special Prosecution Force in 1973. In 1974, he became special counsel to the Senate Judiciary Committee and subsequently chief counsel where he worked closely with Massachusetts Democratic Sen. Ted Kennedy.

Noah Feldman of Harvard Law School wrote in a column that Breyer’s “central intellectual contribution” was “to redefine the field of administrative law as an exercise in rational regulation. To simplify, before Breyer, lawyers mostly thought that administrative law was about letting experts in agencies do their jobs. After Breyer—and following his example—administrative lawyers began to become experts in costs and benefits, supply and demand, and other core principles of rational regulation.”

While working for Kennedy, Breyer played a major role in the crafting of the bipartisan Airline Deregulation Act of 1978. One commentator wrote in 2018: “It’s quite conceivable that airline deregulation by the U.S. Congress would not have taken place if Senator Edward Kennedy had not hired Harvard law professor Stephen G. Breyer.”

In 1980, President Jimmy Carter appointed Breyer to the U.S. Court of Appeals for the First Circuit where he served for the next 14 years until President Clinton tapped him to fill the Blackmun seat. It was the second time Clinton had considered Breyer for the Supreme Court. He was a finalist with Ginsburg for the vacancy created by the retirement of Justice Byron White, but Ginsburg got the nod.

For his first meeting with Clinton in 1993 for the White seat, Breyer reportedly left the hospital where he was recovering from being hit by a car while riding his bicycle. He suffered several broken ribs and a punctured lung. It would not be the last time he suffered a mishap while riding his bike. He has said his doctor recently advised him to stop cycling and he now does “fake bike riding on one of those machines.”

Of his many opinions during his Supreme Court tenure, Breyer recently singled out two as favorites, primarily, he said, “because of the work I put into them.”

The first was his dissenting opinion in Parents Involved in Community Schools v. Seattle School District No. 1 in 2007. A 5-4 majority in that case struck down attempts by Seattle and Louisville, Kentucky, to create or maintain racial diversity in their school systems.

In an unusually angry dissent for the usually calm, unruffled Breyer, the justice wrote: “We have approved of ‘narrowly tailored’ plans that are no less race-conscious than the plans before us. And we have understood that the Constitution permits local communities to adopt desegregation plans even where it does not require them to do so.”

Reading a summary from the bench, Breyer added: “It is not often in the law that so few have so quickly changed so much.”

The second opinion was again a dissent, this one in a death penalty case, Glossip v. Gross. In 41 pages, Breyer laid out, step by step, the problems with the death penalty today that raise questions about its continued constitutionality. He stopped short of calling for it to be struck down, although he wrote it was “highly likely” to violate the Eighth Amendment. But he urged the court “at the very least” to reopen the constitutional question for full briefing. He has returned to that theme in more recent death penalty cases before the court.

Fluent in French, a reader of Proust, a fan of “M.A.S.H.,” Breyer has authored a number of books, including “The Court and The World,” “Active Liberty,” and “Making Our Democracy Work.” His latest work, published by Harvard University Press, is “The Authority of the Court and the Peril of Politics.” That book develops themes he has addressed in recent speeches—how the authority of the Supreme Court was achieved over time and is threatened by measures to restructure the court.

“Justice Breyer has demonstrated a deep commitment to the Supreme Court as an institution that stands above politics and a jurisprudential commitment to decision-making that takes all right reasons into account,” Panner, his former clerk, said. “His approach reflects his deep familiarity with the interplay between legislature and courts, a willingness to exert the court’s influence where appropriate and to defer to legislatures where they have spoken.”

Brianne Gorod, also a former Breyer clerk and chief counsel of the Constitutional Accountability Center, agreed, adding that the justice’s “greatest contribution” will be his broader ideas about government and the role of the courts.

“Because he believes that government and the law should work for people, he believes the courts should be attuned to the real-world context in which they are acting, as well as the consequences that will follow from their decisions,” Gorod said. “These are ideas that he has often espoused in speeches and extra-judicial writings, but they are also evident in so many of the opinions he has written over the years and will be an important part of his legacy.”

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