Justice Breyer’s Retirement
This past Thursday, Justice Stephen Breyer formally announced his retirement from the Supreme Court.
It isn’t effective immediately; he’ll formally retire this summer, at the end of the current term. After 27 years on the bench, Justice Breyer has had a huge impact on American law (and my legal education!) so here’s a quick look at his legacy.
Any guesses on where he went to law school? 😏
[brief] BACKGROUND
Justice Breyer is from San Francisco originally and graduated from Stanford in 1959. (Fun fact: he was also in the Army around this time, six months active and eight years reserve!) He then attended Oxford as a Marshall Scholar (yes, Breyer is an Oggsford man) before earning his law degree in 1964 from HLS. He clerked for Supreme Court Justice Arthur Goldberg before doing LOTS of government attorney work and returning to Harvard Law as a professor.
In 1980, President Jimmy Carter nominated then-Judge Breyer to sit on the Court of Appeals for the First Circuit. He remained there (and acted as chief judge from 1990-1994) until his nomination to the Supreme Court.
SUPREME COURT TENURE
“Judge” Breyer officially became “Justice” Breyer on August 3, 1994.
This is a pic of Justice Breyer taking the constitutional oath, administered by Justice Antonin Scalia.
He was nominated by President Bill Clinton to fill former Justice Harry Blackmun’s seat, and confirmed by an 87-9 vote in the Senate. In the subsequent nearly three decades, Justice Breyer has earned a reputation as a “living constitutionalist,” the “most pragmatic” justice, and a “centrist problem-solver” on the bench.
There are multiple schools of thought re: constitutional interpretation; at the risk of incredible oversimplification, these can be roughly divided into “originalism” and “living constitutionalism.” The former believes the constitution’s meaning is fixed at the “original public meaning” of the words when the text was ratified; the latter believes that the constitution’s meaning evolves along with changing values and circumstances. Justice Breyer believes in “the living constitution”; in a review of his own book, Making Our Democracy Work, a Judge's View, Breyer argued that:
“The job of the Supreme Court is to apply the Constitution's values to modern circumstances, using the tools of judging: precedent, text and an assessment of the purpose of the constitutional provision at issue.”
As you probably guessed, this stance puts Justice Breyer on the judicially ‘progressive’ end of the SCOTUS spectrum (originalists tend to be judicially ‘conservative’). Although known as a more ‘moderate progressive’ on the Court, Justice Breyer currently accounts for 1/3 of the liberal wing (with Justices Kagan and Sotomayor) against the six-member conservative wing (Justices Roberts, Alito, Gorsuch, Barrett, Kavanaugh, and Thomas).
Justice Breyer is often called “pragmatic” because he tends to consider/maneuver around the real-life consequences of SCOTUS stances in his decisions. He also has a reputation for trying to find a middle ground, cultivating genuine relationships with the other justices regardless of their judicial or political views, and respecting the role and power of the legislature.
CASE LAW ft. JUSTICE BREYER
These are just a few notable cases where I’ve encountered Justice Breyer during law school! A quick note, these are VERY simplistic/reductionist readings of what happened in each case.
United States v. Booker (2005) - Criminal Law
Booker was the final in a trifecta of “sentencing cases” and gets a bit confusing, but IN A NUTSHELL: Justice Breyer wrote an opinion clarifying (1) the Federal Sentencing Guidelines are discretionary, not mandatory, and (2) any sentence enhancement must be found by a judge/jury using the “beyond a reasonable doubt” standard. Like I said, that’s a reductionist reading but this case (and the two before it) still has a huge effect on criminal adjudication today.
Shelby County v. Holder (2013) - Voting Rights
A 5–4 majority ruled that Section 4(b) of the Voting Rights Act is unconstitutional because, basically, it is no longer necessary. Justice Breyer joined RBG in dissent and argued that Congress enacted the Voting Rights Act to satisfy the 15th Amendment (re: voting rights), and it is still necessary to protect those rights/therefore constitutional. Shelby County was a very controversial decision with a massive impact: just five years later, nearly 1000 polling places - most of them in predominately Black counties - had closed.
Glossip v. Gross (2015) - Capital Punishment
Another 5-4 majority (and another Breyer dissent) ruled that Oklahoma can use a specific drug to administer the death penalty, despite evidence that it caused significant pain to death row inmates. In a strongly worded and often-cited dissent, Justice Breyer questioned the constitutionality of the death penalty itself:
"Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: Whether the death penalty violates the Constitution...at the very least, the court should call for full briefing on the basic question."
Whole Woman's Health v. Hellerstedt (2016) - Abortion Rights
A 5–3 majority, authored by Justice Breyer, ruled that a Texas law restricting delivery of abortion services created an undue burden on impacted women and therefore, was unlawful. In pointing out that the law would cause the closure of most Texas abortion facilities, Justice Breyer stayed true to his methodology of considering the real-world impact of SCOTUS decisions.
And finally, my personal favorite quote from a hearing in 2021: Justice Breyer asking about the ownership of fog in San Francisco.
“Suppose somebody came by in an airplane and took some of that beautiful fog and flew it to Colorado, which has its own beautiful air. And somebody took it and flew it to Massachusetts or some other place. Do you understand how I’m suddenly seeing this and I’m totally at sea? It’s that the water runs around. And whose water is it? I don’t know.”
As someone who *lives* in a mental “totally-at-sea” state, I just really felt this one.
PRESIDENT BIDEN’S FUTURE PICK
So, Justice Breyer is retiring. What happens next? First, President Biden will nominate a candidate for his replacement; that candidate is then sent to the Senate Judiciary Committee for consideration. As you may remember from Justice Barrett’s confirmation in 2020, that’s when witnesses speak about the candidate and Senators question them about…literally everything. The Judiciary Committee then votes (Thumbs Up, Thumbs Down, or No Recommendation) and sends that recommendation to the Senate. Finally, the Senate debates the nomination and votes on the candidate; a simple majority is necessary for confirmation.
During his campaign, President Biden promised to nominate the first Black woman to SCOTUS if given the opportunity. Of course he’s not bound to that promise, but luckily he has MANY qualified candidates to choose from! Based on this statement and the current, judicially-conservative majority of the Supreme Court, many speculate President Biden will nominate someone with more judicially-liberal views than Justice Breyer.
Here are the women on the President’s rumored ‘short list,’ in no particular order:
Judge Ketanji Brown Jackson, D.C. Circuit Court of Appeals (she replaced Judge Merrick Garland when President Biden made him the US Attorney General).
Judge Eunice Lee, 2nd Circuit Court of Appeals.
Judge Candace Jackson-Akiwumi, 7th Circuit Court of Appeals.
Justice Leondra Kruger, California Supreme Court.
Judge J. Michelle Childs, District Court for the District of South Carolina (she was recently nominated to the D.C. Circuit)
Judge Leslie Abrams Gardner, District Court for the Middle District of Georgia (yes, she’s Stacey Abrams’ sister!)
A FEW LAST MINUTE THINGS RE: SCOTUS
The number of SCOTUS justices is NOT set in the Constitution. In fact, it has fluctuated between 5 and 10 throughout American history. There are lots of reasons why deviating from 9 justices *likely* won’t happen, but *legally* it could.
Yes, Supreme Court justices can retire! They don’t have to; per Article III of the Constitution, federal judges “hold their Offices during good Behaviour” (aka, for their entire lifetime as long as they don’t mess up). Technically, Justice Breyer could’ve kept his seat until his death (like Justice Ginsburg, and Justice Scalia before her) but he’s going the Justice Kennedy route and decided to retire instead.
Was this a political move? I mean, maybe. But I think it’s more accurate to frame it as “Justice-Breyer’s-independent-decision-that-a-Democratic-POTUS-and-Congress-will-use-to-their-advantage.” There’s nothing odd about that, particularly in the past few decades: all sitting “liberal” justices were nominated by a Democratic President and all sitting “conservative” justices were nominated by a Republican President.
To wrap up, as I was Googling for this post (no shame!) I ran across an article written by one of Justice Breyer’s law clerks. It had a lot of great content but this particular quote - taken from a speech to law students from a few years ago - really stood out. I’ll conclude with that here.
“It’s always easy to expect the other person to agree with you,” he said at the time. What is harder, and what is absolutely essential, is to ask yourself, “How much am I prepared to listen to other people and really mean it?” There are no shortcuts, and there is no pretending. At the end of the day, the justice admonished the students, “[T]he first place to look is the mirror.”
