Justice Stephen Breyer, an influential liberal on the Supreme Court, to retire
This article was published on NPR and written by Nina Totenberg.
U.S. Supreme Court Justice Stephen Breyer is retiring after serving more than two decades on the nation's highest court, Supreme Court and Biden administration sources tell NPR.
Breyer — professorial, practical and moderately liberal — wrote many of the court's legally important but less glamorous decisions and sought, behind the scenes, to build consensus for centrist decisions on a conservative court.
Breyer's retirement gives President Biden his first opportunity to name a new justice to the court. During the 2020 campaign, he pledged to name an African American woman if he got the chance. The two leading contenders are said to be federal Judge Ketanji Brown Jackson, who was on President Barack Obama's shortlist for the court in 2016, and California Supreme Court Justice Leondra Kruger, who served as assistant, and then deputy solicitor general in both Democratic and Republican administrations prior to her nomination to California's highest court.
Both women are young, in terms of Supreme Court appointment. Brown Jackson is 51 and Kruger is 45. And both have stellar legal credentials.
Breyer's decision to retire is a relief to liberal Democrats after seeing Republicans push through three nominees from President Donald Trump using some unprecedented tactics. Indeed last year, some liberal groups publicly pressed Breyer to retire, even demonstrating in front of the Supreme Court. The justice, however demurred. In an interview with NPR he said that the decision on when to retire "has many complex parts to it. I think I am aware of most of them and will consider them."
His decision to remain for another year was likely due in large part to the major issues the court was about to confront — abortion, guns, separation of church and state, and potentially affirmative action. These are all matters that he has strong feelings about, and he thought that his 27 years on the court might enable him to prevent a wild swing to the right. In the 2020 term he had played just that role.
But this term, when compromise seemed to elude even his skilled hand, the 83-year-old justice decided it was time to step down. As he put it in an NPR interview in September, "I do not want to stay on the Supreme Court until I die."
The court's term ends this summer, and it's expected he'll retire then.
Hollywood's idea of a Supreme Court justice
Breyer, though not a household name, has been an important figure on the Supreme Court for more than a quarter century.
Indeed, if he hadn't been a justice, Hollywood might have made him up. Deeply intellectual — fluent in not just law, but philosophy, art and culture — he is also absent-minded, geeky, self-deprecatingly funny, physically fit, but so preoccupied that he three times suffered serious injuries when knocked from his bicycle.
In the 2020 court term, Breyer remained an important force, authoring some of the court's most important decisions. He wrote the court's 8-1 decision expanding free speech rights for students and declaring that a school could not punish a 14-year-0ld cheerleader for her off-color, online Snapchat message disparaging her school, which she posted from off campus.
In another major case, he wrote the court's decision tossing out a challenge to Obamacare for a third time.
Perhaps his most publicly well-known decision came in 2016 when he wrote the court's abortion decision striking down a Texas law, copied in other states, that closed nearly half the clinics in the state without any demonstrable safety justification. The decision dispassionately dissected and demolished the state's claim that its motive was to protect women's health and safety.
As Breyer observed, prior to enactment of the challenged law, abortion was among the safest medical procedures in the state. Childbirth, he pointed out, was 14 times more likely to cause death, colonoscopy 10 times more likely and liposuction 28 times more likely, and yet, none of these other procedures was similarly regulated. Instead, as he noted, the Texas law closed 20 clinics, the result being "fewer doctors, longer waiting times, increased crowding and significantly greater travel distances, all of which, when taken together burden a woman's right to choose."
The decision had no majestic language, but its effect was profound — at the time — in reaffirming the rights of women to terminate pregnancies.
Still, in many respects, Breyer's monuments were not so much the decisions that he authored as the decisions that he influenced.
Behind the scenes, Breyer pushed and prodded his fellow justices for consensus on everything from Obamacare to affirmative action in higher education.
In 2013, when the court's conservatives seemed poised to invalidate all affirmative action programs in higher education, the justices instead, by a 7-to-1 vote, sidestepped the issue, sending the case back to the lower courts for further fact-finding. Justice Anthony Kennedy wrote the decision, but Breyer's hidden hand was said to be behind the compromise ruling. And three years later, Kennedy would, for the first time, embrace affirmative action in higher education.
On other occasions, Breyer's compromise approach was more out front, as when the justices split in 2005 over religious displays on public property. In one case, the Ten Commandments, engraved on a stone monument, along with other monuments, were displayed in a public park; in another, the Ten Commandments were displayed in a courthouse. Four justices thought the Constitution's mandate for separation of church and state barred both. Four justices thought neither was barred. Breyer split the difference, saying that the Ten Commandments were permissible in the public park but not at the courthouse.
Sunny in disposition and naturally optimistic, Breyer believed in persuasion and viewed a dissent as a failed opinion. But he did dissent, and sometimes passionately — for example, in 2007 when a five-justice majority struck down voluntary school desegregation plans in Louisville, Ky., where the schools had once been segregated by law, and in Seattle, where they had been segregated in practice.
In his dissent, he observed that the court had long allowed local school districts considerable leeway to prevent re-segregation. But now, he said, it was striking down the same kinds of plans that had long been permitted because of the votes of five justices, two of them new to the court.
"It is not often in the law that so few have so quickly changed so much," Breyer said in a lengthy dissent from the bench. The decision, he added, would undermine racial progress in America and would go down in history as "a decision that the court and the nation will come to regret."
It was hardly the only time that Breyer would see the court's handiwork — including his own work — undone by a new and dramatically more conservative court majority.
Breyer, for instance, was one of the three justices who wrote the Supreme Court's 2003 majority opinion upholding the McCain-Feingold campaign finance law, aimed at limiting the influence of big money in politics and government. But seven years later he would see the law gutted by a different and more conservative majority.
Although briefly dejected, Breyer returned to his optimistic ways, always hoping to persuade, and sometimes succeeding. To keep him on his chosen path, he made time for a short period of meditation each day.
A life with many different jobs
Stephen Gerald Breyer was born in San Francisco, the son of a lawyer for the city's public schools. He was so smart that his mother worried that he would be too bookish and so ensured that he was not. By age 12, Breyer had attained the rank of Eagle Scout and as a teenager held summer jobs digging ditches for the local utility and working in the kitchen of a local summer camp.
He graduated Phi Beta Kappa from Stanford, went to Oxford as a Marshall scholar, then went to Harvard Law School, where he was a law review editor, and then won a Supreme Court clerkship.
While in Washington, he met Joanna Hare, the daughter of a British viscount. They were married, had three children, and Mrs. Breyer went on to have a distinguished career in Boston at the Dana Farber Clinic, where she was a psychologist counseling young cancer patients and their families.
Her husband would spend decades as a professor at Harvard Law School, but with several stints in Washington — in the Justice Department's antitrust division, as assistant prosecutor in the investigation of the Watergate scandal and as chief counsel for the Senate Judiciary Committee, then chaired by Sen. Edward Kennedy, D-Mass.
Kennedy wanted results and he taught Breyer an important lesson about forging consensus. "He'd tell us, 'Don't worry so much about credit,' " Breyer recalled. "'Credit is something where, if you succeed, there will be plenty of credit to go around, and if you fail, who wants the credit!' "
While working for the committee, Breyer helped enact legislation that deregulated the airline industry and legislation to make federal criminal sentencing more uniform.
He was so successful that when President Jimmy Carter nominated him to the federal appeals court in Boston in 1980 just days after Ronald Reagan was elected, Republicans let the appointment go through — an act of cooperation that is simply unimaginable today.
The road to the Supreme Court
Breyer served as an appeals court judge for 14 years, eventually becoming chief judge, and serving on the U.S. Sentencing Commission, created under the sentencing law he helped shepherd through Congress.
In 1993 he was a finalist to fill a Supreme Court vacancy. He was about to come to Washington for an interview with then-President Bill Clinton when he was knocked off his bike by a car. With broken ribs and a punctured lung, he took the long train ride to Washington for the meeting. He was in considerable pain at the time, and the word was the interview didn't go particularly well. Clinton chose Ruth Bader Ginsburg instead, but a year later, when a second vacancy occurred upon the retirement of Justice Harry Blackmun, Breyer got the nod.
On the court, he proved a moderate liberal who worked well with moderate conservatives like Sandra Day O'Connor. When she retired and was replaced by the far more conservative Samuel Alito, the court, under new Chief Justice John Roberts, seemed to veer more dramatically to the right. Privately, Breyer seemed puzzled by the new brand of conservative and what he perceived as a more hard-line, even aggressive, agenda. But in time, his congenial disposition returned, and as once again he began looking for ways to achieve consensus.
Taking on originalism
At the same time, he sought to make the public case against the conservative doctrine of "originalism." He wrote two books arguing for a different interpretation of the Constitution, and often debated conservative Justice Antonin Scalia in public. Scalia's often repeated view was that the Constitution, as he put it, "is not living but dead," and it must be interpreted as the Founding Fathers would have. Breyer's view was that the Founders understood perfectly well that nothing is static, citing for example, the Constitution's ban on cruel and unusual punishment.
"Flogging might have been fine in the 18th century," Breyer said in a 2010 interview with NPR. "That doesn't mean that it would be OK and not cruel and unusual punishment today."
What's more, he observed, even historians don't agree on what the Founders meant at the time they wrote the Constitution.
"History is very often in these matters a blank slate or a confused slate, and if you want to govern the country by means of that history, then you better select nine historians and not nine judges to be on the court," Breyer told NPR. "And I'll tell you, those nine historians will very often disagree with each other."
The job of a Supreme Court justice, Breyer said, is to apply the Constitution's values to modern circumstances, using the tools of judging — precedent, text and the purpose of the constitutional provision at issue.
You can think of the Constitution as laying down certain frontiers or borders, he said. "And we're the border patrol."
"Life on the border is sometimes tough, and whether a particular matter — abortion or gerrymandering or school prayer — whether that's inside the boundary and permitted or outside the boundary and forbidden, is often a very, very difficult and close question," he said.
Breyer's approach to the border was definitely pragmatic. Thus, when a coalition of liberal and conservative justices invalidated the mandatory federal sentencing guidelines, Breyer dissented, but was able to preserve the guidelines in a separate opinion by making them voluntary instead of mandatory. That gave judges more wiggle room in sentencing, but preserved the guidelines as a measuring stick.
Changing his mind on the death penalty
In many criminal cases he sided with the court's conservatives, viewing various practices as reasonable and necessary for law enforcement.
But on at least one subject he changed his mind. In 2015, after years of trying to make the death penalty work more fairly and equitably, he basically gave up, declaring that the time had come for the court to reconsider whether capital punishment is constitutional.
As much as he sought consensus on the court, Breyer was at the same time realistic, realizing that as time went on, and more conservative Republican appointees joined the court, he was often in the minority. He tried his best behind the scenes to persuade, and perhaps more often than many realized, he won major concessions, without taking any personal credit. But there was no denying that he lost more often than he liked.
"I would prefer that I was not in dissent quite so often, but it's a big country," Breyer told NPR in 2010. "And it's not such a terrible thing to have people on the Supreme Court who think very different things. And when I'm in dissent and I get discouraged, so what? I mean, I've written down what I thought and every case is a new day."