This piece originally appeared in Inquest, a forum for advancing decarceral ideas published by the Institute to End Mass Incarceration.
One of my first assignments as a legal journalist was covering a public conversation, at 92Y in New York City, between Justice Stephen Breyer and Harvard law professor Noah Feldman. At the time, the killings of Michael Brown in Ferguson, Missouri, and of Eric Garner in New York City had awakened a national uprising, and I was genuinely curious about what, if anything, the consensus-building liberal on the Supreme Court—as has been Breyer’s reputation—had to say about any of it.
Rereading my dispatch from that evening, on the occasion of Breyer’s announcement that he’ll soon be retiring after nearly three decades on our nation’s highest court, reminded me of how disappointed I was that day. I had no expectations that the justice would declare that Black lives matter. And he didn’t. But Feldman did broach the subject sensibly, trying to get him to meet the moment. And Breyer, contorting himself into knots to dodge questions about how judges respond to social movements, offered a word salad that wasn’t too different from his winding, hard-to-parse questions during oral argument.
Breyer ended up throwing the ball back at Feldman, who pens a regular column about the Supreme Court. “That’s your job, to write about how the great social movements influence the judges,” Breyer told him. “Maybe they do.” And that was the end of it. “Without the benefit of a case or controversy before the Supreme Court,” I concluded in my report, “it’s clear Breyer will never get to talk about Ferguson or the many things it stands for. Let others write about the great social movements. That’s none of his business.”
Looking back, maybe I was expecting too much of a jurist whose privilege and place in Washington politics leave no doubt that he has always been more than a few steps removed from popular struggle. Breyer is someone, after all, who has worked for the government his entire career. But more to the point, he’s someone who has made celebrating our government and its institutions a centerpiece of his academic, jurisprudential, and personal philosophy. Little wonder, then, that he had little to say about people protesting a government that kills and cages its own people. Breyer’s abiding faith in government bars him from fully seeing the communities crushed by it.
And it shows in his rulings. To put it bluntly: No liberal justice has cast more pro-government, carceral votes than Breyer has in the modern Supreme Court. In a single term nearly a decade ago, Breyer cast a vote for expanded police powers in every non-unanimous case where conservative Justice Antonin Scalia cast a vote for the person on the receiving end of those powers. In one of those cases, Breyer found himself in company that should have given him serious pause, joining Clarence Thomas, Samuel Alito, John Roberts, and Anthony Kennedy to form a majority of five that allowed the state to collect the DNA of anyone who is simply arrested by the police. It was Scalia, joined by the three other liberal justices, who retorted in dissent, “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
Three years later, not long after Scalia’s death, an eight-member court issued a ruling in another Fourth Amendment case, Utah v. Strieff, that would’ve gone largely unnoticed by the mainstream press but for the thunderous dissenting opinion of Justice Sonia Sotomayor. I was sitting in the Supreme Court’s pressroom when her words jumped out at me from the page. “Do not be soothed by the opinion’s technical language,” she wrote. “This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong. … [It] tells everyone, white and black, guilty and innocent, that an officer can verify your legal status at any time. It says that your body is subject to invasion while courts excuse the violation of your rights. It implies that you are not a citizen of a democracy but the subject of a carceral state, just waiting to be cataloged.”
On an equally divided court, all Breyer had to do to avoid this massive erosion of rights was to vote quietly with Sotomayor or with Justice Elena Kagan, who wrote her own dissenting opinion—both of whom were joined by Justice Ruth Bader Ginsburg. Had the court split 4–4, the lower court opinion—by the Utah Supreme Court, ruling against the police—would have stood. But siding once again with his four more conservative colleagues, and the government, Breyer provided the fifth vote to allow the police to, in Sotomayor’s words, “corrode all our civil liberties and threaten all our lives.”
To be fair, Breyer’s record on criminal justice issues like these is far removed from his reputation in some other fields, like voting rights and reproductive freedom, where he was a reliable vote for progressive causes and values. But even in those domains, one would be hard-pressed to find a case where he wrote with the kind of moral and legal clarity that Sotomayor displayed in Strieff. Last year, when Breyer’s activist colleagues drove a stake through the labor legacy of Cesar Chavez, his languid dissent failed to call out this anti-democratic overreach—or say much of anything about the farmworker struggle the majority had all but erased. With the notable exceptions of Parents Involved v. Seattle, where Breyer’s dissent forcefully condemned racial segregation, and his later call to reconsider the constitutionality of the death penalty, which earned him plaudits and Scalia’s ridicule, he preferred cautious compromises to clarion calls.
Many have praised this instinct, and more will in the months to come, now that Breyer has announced his intention to retire at the end of the current Supreme Court term. We will hear odes to his status as a consensus builder and a pragmatist, to his technocratic belief in government, and to his “clear-eyed commitment to making our country’s laws work for its people,” as President Joe Biden put it this week while making Breyer’s retirement official.
But I’m left to wonder whether a lot of those qualities have mattered, or will matter in the coming years. Compromise and common ground got Breyer nowhere through some of the most polarizing moments during his tenure—including the Supreme Court’s choice to hand the presidency to George W. Bush, its indifference toward human rights abuses at Guantanamo and elsewhere in the post-9/11 period, and its near-destruction of one of our most important laws, the Voting Rights Act of 1965, to name just a few modern lowlights.
Breyer was in dissent in many of those cases, but did he speak up in a way that made a difference? Is there a line of concurring or dissenting opinions that future generations, our children, might read for inspiration or guidance in all the many fights to come? A marker of where he stood in the moments that mattered most? Or something that advocates can cite in their work fighting injustice? To name one example: When Donald Trump, in his first year in office, showed his true colors with a Muslim ban built on a mountain of pretext and procedure, Breyer couldn’t bring himself to join Sotomayor and protest the ban for the immoral monstrosity that it was; he simply wrote a careful, studious dissent that largely avoided taking a stand for the human beings harmed by the president’s animus.
This moment of punitive excess, democratic decay, climate emergencies, and other crises calls for taking a stand. For no more compromises. For no more bridge-building when there’s a clear supermajority at the Supreme Court ready—hungry—to burn down many of the principles and precedents Breyer stood for, let alone those he didn’t.
Whoever replaces Breyer needs to be clear-eyed about all of this in ways that he wasn’t. Nowhere is the opportunity for a new direction more apparent than with respect to the enduring stain of mass incarceration, which Breyer played a role in building. Biden has an opportunity to nominate someone who isn’t afraid to confront this defining social injustice as the evil that it is—to call it out by name. In other words, to nominate someone who is far different from Stephen Breyer.
To be clear, no single justice or judge—no court, for that matter—will ever end our current system of mass caging and punishment. Indeed, the Supreme Court as a whole has sanctioned a coercive system that thrives on pleas, grossly excessive sentences, and a dearth of meaningful recourse for anyone wishing to challenge their punishment or conditions of confinement. The criminal legal system—the government that Breyer celebrates—needs all of these things to keep humming along. And so no one should harbor any illusions that Breyer’s replacement will get us out of the current mess. Judges are system actors. What we can hope for, at the very least, is someone who will join the court and be ready to dissent and speak to the rest of us with all she’s got. Now is not the time for more compromises, or compromisers. Now is the time to meet the moment.