WASHINGTON (CN) — Justice Stephen Breyer professed optimism that the American experiment would endure when he gave remarks on his retirement from the nation’s highest court on Thursday. But the increasingly radical institution Breyer is leaving stands opposite to the ideals the liberal justice held dear during his nearly 28 years on the bench.
While Breyer has been a reliable vote for the liberal wing on abortion and gun rights, his years on the court were shaped by his ability to build consensus for more centrist decisions. The moderate liberal became known for his use of multifactor balancing tests.
“Justice Breyer's opinions are noteworthy for their careful attention to relevant facts and the many legal interests and values at issue in resolving cases,” Blake Emerson, an assistant professor at UCLA Law, said in an email. “A dyed-in-the-wool functionalist, Breyer was famous for his multifactor balancing tests rather than black-and-white rules. He was also ideologically moderate.”
Keeping with his idealist views of the court, Breyer has repeatedly told audiences that the justices were not “junior varsity politicians.”
Breyer even wrote a book about how political inclinations from the justices could be catastrophic for the court. In “The Authority of the Court and the Peril of Politics,” he wrote, “A judge’s loyalty is to the rule of law, not the political party that helped to secure his or her appointment.”
Breyer was known to try to reach across the aisle convincing his colleagues with differing perspectives. Significantly, he reportedly made a deal with Chief Justice Roberts that resulted in the 5-4 decision to uphold the Affordable Care Act.
“Justice Breyer is perhaps the last of the great statesmen on the court,” said Lawrence Gostin, a professor at Georgetown Law. “He cared passionately about the court's reputation as an impartial arbiter of major issues guided by the rule of law. I think Chief Justice Roberts will be the only person going forward with a major stake in defending the court's reputation. The rest of the court are ideologically motivated.”
However, the court Breyer joined is not the same court Breyer is leaving.
“The court Justice Breyer is leaving is fundamentally different than the court he joined,” Richard Bernstein, an appellate lawyer, said in an email. “Pragmatists like O'Connor and Kennedy have been replaced by others who do believe in their ideology that they ignore consequences. But consequences count. Dred Scott and Plessy were horrible decisions not merely for their reasoning but even more so for their consequences. I fear for the consequences to the nation and the court's legitimacy from today's ideological justices.”
With a 6-3 majority of conservative justices poised to tackle the wish list that the conservative legal movement has been eyeing for decades, it’s hard to see how those kinds of compromises could be struck now.
“In the cases that count, that's almost never the case: for nearly every hot-button issue the court hears, we know the predictably partisan result the minute review is granted, which is not how a purportedly apolitical court should operate,” Gabe Roth, executive director of Fix the Court, said in an email.
Some think Breyer’s continuing insistence that the court wasn’t political actually harmed the court and the justices he’ll leave behind. One of his favorite anecdotes in interviews is how the country accepted the decision in Bush v. Gore even though many people — including him — thought it was a bad call. He quoted Harry Reid in a September 2021 interview with NPR saying it is very difficult to get people to follow decisions that they think are totally wrong but the Supreme Court does just that.
“He said the most remarkable thing about this case is something that's rarely remarked,” Breyer said. “Even though it affected a lot of people and probably half the country didn't like it at all and it was totally wrong, in his opinion … people followed it, and they didn't throw brickbats at each other and they didn't shoot each other and they didn't have riots.”
However, Breyer’s optimism on this point negates the reality of the aftermath of the 2020 election where rioters stormed the Capitol to prevent Joe Biden from becoming president.
“But Breyer was giving these talks in 2021 — the very year in which there was not a peaceful transition of power,” Roth said. “Breyer's optimism might be inspiring to some, but his insistence on invoking bygone days to imply the Court's something it's not is pollyannaish and a disservice to Justices Kagan and Sotomayor, who are correctly noting that the world — and their Court — are on fire.”
As the consensus-building idealist justice calls it quits, the supermajority conservative court is set to dole out landmark decisions from this term on abortion access, gun rights, and the power of the administrative state set to shape the country for years to come.
“The court is already moving in the opposite direction in substance and style: more hard-right rulings, more formalism than functionalism, more heated rhetoric than cool calculation,” Emerson said. “Those trends are likely to accelerate now.”