Jurisprudence

Stephen Breyer Couldn’t Meet the Moment

The justice’s futile quest for compromise rendered him an ineffectual leader of the liberal bloc.

Justice Stephen Breyer looking placid.
Justice Stephen Breyer. Photo illustration by Slate. Photo via Pool/Getty Images.

On Wednesday, multiple news outlets reported that Justice Stephen Breyer will announce his intent to step down from the Supreme Court at the end of its current term this summer. The 83-year-old justice has served for more than 27 years, voting often, though not always, with the court’s liberal bloc. His announcement gives the White House ample time to select his successor—likely, Judge Ketanji Brown Jackson—and affords the Senate months to confirm her. It also ensures that Democrats can replace Breyer while they retain control of the Senate, maintaining the court’s current 6–3 split between conservatives and liberals.

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Although he served as a judge for decades, Breyer has always been a professor at heart. He taught at Harvard Law School for 13 years before President Jimmy Carter appointed him to the 1st U.S. Circuit Court of Appeals in 1980. After President Bill Clinton elevated him to the Supreme Court in 1994, he joined its progressive wing, but distinguished himself with idiosyncratic votes and a desire for compromise. At Harvard, Breyer’s specialty was administrative law, focusing on executive agencies that implement federal statutes. He adored the intricacies of regulatory rule-making and applied that approach to his work on the court, developing elaborate balancing tests and multifactor analyses to decide major controversies.

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This style of judging put Breyer increasingly out of step with the court. He joined in the midst of Chief Justice William Rehnquist’s conservative revolution, which sought to overturn many civil rights decisions of the 1960s, narrow the scope of congressional authority, and expand states’ rights. Abetted by Justices Antonin Scalia and Clarence Thomas, Rehnquist sought to revive a pre–New Deal jurisprudence that took a dim view of federal power and civil liberties (outside of property rights). This conservative bloc believed that the Supreme Court had betrayed the Constitution by establishing an endless series of judge-made tests that emphasized reasonable, workable rules over constitutional text and original meaning. Such flexible tests, conservative justices argued, created a back door through which judges could smuggle their own preferences into the law.

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For years, Breyer helped to slow down the Rehnquist revolution by allying with Justices Sandra Day O’Connor and, to a lesser extent, Anthony Kennedy. Both justices enjoyed the broad latitude of their new colleague’s flexible style. Breyer grew especially close to O’Connor and sometimes joined her in 6–3 decisions that inched the law rightward while holding off a more radical outcome. After Justice Sam Alito replaced O’Connor, the court began reversing centrist precedent that Breyer and O’Connor had crafted together. “It is not often in the law that so few have so quickly changed so much,” he lamented from the bench at the end of the first full term without O’Connor, when the court sharply restricted affirmative action with Alito’s vote.

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The rejection of Breyer’s compromises that began after O’Connor’s retirement accelerated after Kennedy stepped down in 2018. It sped up once Justice Amy Coney Barrett replaced Justice Ruth Bader Ginsburg. Today, the Supreme Court’s 6–3 conservative supermajority is efficiently shredding Breyer’s entire jurisprudence. It has rejected not only a great deal of precedent that Breyer holds dear, but also his entire approach to judging, and his conception of the judiciary’s role in American democracy.

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So Breyer was dealt a difficult hand in his final years on the bench. But in truth, he did not play it very well. Even after Alito replaced O’Connor and the five conservatives plowed over his most prized decisions, he continued to seek compromises with the uncompromising majority. He cast the decisive fifth vote in several catastrophic Fourth Amendment decisions, including one that expanded law enforcement’s ability to collect DNA without consent and others that authorized more warrantless searches. He feebly sought a middle ground on religious liberty that the conservatives swiftly weaponized to bulldoze the separation of church and state. He granted a “courtesy vote” to prevent a transgender student from using the proper bathroom at school—a courtesy that the conservative justices did not return when he later tried to pause lower court decisions.

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In recent years, it appeared that Breyer held onto a fantasy of the Supreme Court that no longer existed. He really believed that he could reason with his hard-right colleagues to secure trade-offs that would serve the greater interests of the court and American democracy. Time and again, he tried to prove his good faith by voting with the conservative wing. Time and again, his Republican-appointed colleagues rebuffed these olive branches, plowing ahead with their agenda over Breyer’s increasingly desperate pleas for moderation.

The justice’s endless yearning for compromise rendered him a rather ineffective leader of the liberal wing after Ginsburg’s death. He frequently seemed adrift, asking rambling questions at oral argument that lost their purchase with the conservative faction long ago. His dissents were hazy and incongruously mild, even in huge cases involving abortion, COVID, and capital punishment. No one would envy Breyer’s position, but it’s hard to deny that he failed to meet the moment. The court’s progressive bloc needs a powerful dissenter who pulls no punches, condemning the majority’s lawless excesses with blunt candor. Yet even as the court blew up Breyer’s most prized precedents, he remained oddly muted. He even published a book defending the court whose trajectory he decried, then embarked on a publicity tour to shore up SCOTUS’s reputation and legitimacy. When the nation needed brutal truths about the Republican Party’s capture of the courts, Breyer provided laughable bromides about the judiciary’s independence.

Justices Elena Kagan and Sonia Sotomayor have brilliantly filled the void that Breyer left, but they deserve better. After Breyer steps down, Sotomayor will become the senior-most liberal member of the court, and no one doubts her ability to call out the majority’s corruption of the law. It’s notable that neither Kagan nor Sotomayor embraces Breyer’s flexible, administrative law–inspired approach to judging; when he departs, that tradition will disappear with him. His style of judging is largely extinct, and the substance of his decisions is in ever greater jeopardy.

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