Justice Breyer’s Legacy-Defining Decision

The longer Breyer remains, the more likely a Republican president choosing his successor becomes.

Stephen Breyer
GABRIELLA DEMCZUK / The New York Times / REDUX

About the author: Adam Cohen is the author of Supreme Inequality: The Supreme Court’s 50-Year Battle for a More Unjust America.

In April, United States Supreme Court Justice Stephen Breyer delivered a lecture at Harvard Law School with the less-than-scintillating title “The Authority of the Court and the Peril of Politics.” He argued strongly—and, at least in my view, unconvincingly—that Supreme Court justices are above politics. Breyer insisted that “jurisprudential differences,” not political ones, “account for most, perhaps almost all, of judicial disagreements.” As he sees it, the justices are essentially technocrats who methodically use their preferred legal tools to decide how cases should come out.

This idea is a fairy tale America likes to tell itself. If this story were true—if justices were mere technocrats—presidents filling a Court vacancy would appoint the best legal scholars and judges without considering their politics. What presidents of both parties actually do, as George W. Bush did when choosing Samuel Alito and as Barack Obama did when selecting Sonia Sotomayor, is draw up lists of candidates vetted for conservative or liberal purity. Donald Trump expressly chose Amy Coney Barrett and Brett Kavanaugh for their right-wing bona fides. Are we really to believe nominees suddenly abandon their views when they get to the Court?

In most circumstances, a mistaken law-school lecturer would be of little consequence. (I quickly lost track of how many wrong things I was told in law school.) Breyer, however, is not merely an academic expounder of ideas—he is one-ninth of the Supreme Court and one-third of its liberal bloc, and his words have unusual force. For that reason, his outlook is not only misguided but dangerous, because it clouds Americans’ understanding of how the Court actually works, and the substantial harm it has been doing, particularly to the poorest and most vulnerable members of society.

Breyer’s resistance to acknowledging the Court’s political nature also poses a more specific threat. At 82, he is the oldest justice on the Court and is under enormous pressure to retire in the next few weeks, when the term ends. The logic of the liberals who are calling for him to step down is unassailable: If he leaves now, President Joe Biden can name a replacement while Republican senators lack the votes to block the nomination. (The filibuster, which is holding up other Democratic priorities, cannot be used to stop Supreme Court nominations.) The longer Breyer remains, the more likely a Republican president choosing his successor becomes.

Breyer’s Harvard speech can easily be read as a rationale for not retiring. If justices are apolitical, Breyer need not make a special effort to have his seat filled by a Democratic president. That a justice would want to hold on to the power and prestige of the office is quite understandable, but the cost to the nation could be grave. Liberals pleaded with Ruth Bader Ginsburg to retire when Barack Obama was president but she did not, and now Barrett sits in her seat—and could cast the deciding vote to overturn Roe v. Wade.

When Breyer was nominated, in 1994, no one expected him to be a raging liberal. Bill Clinton—who had made his first Supreme Court nomination, of Ginsburg, a year earlier—was looking for a centrist liberal with a first-rate legal mind who would be easily confirmed. Breyer checked all the boxes. He had a moderate record as a federal-appeals-court judge in Boston. The New York Times noted that he rejected “the classic liberal constitutional view, as exemplified by the Supreme Court under Chief Justice Earl Warren, that the courts should function as engines of social change.”

Breyer had Harvard and Oxford degrees, and he was a Harvard Law School professor and a prominent administrative-law scholar. Unlike many justices, Breyer also had significant real-world legal experience: He had been a Justice Department special assistant and a Watergate prosecutor. As for confirmability, Breyer was unusually well positioned. He had spent years as a staffer for the U.S. Senate, the body that would vote on his nomination. He sailed through on a bipartisan 87–9 vote, the largest margin of any current justice.

On the Court, Breyer has been very much as advertised. He is an erudite, collegial justice who usually votes with his liberal colleagues. He has had moments of genuine progressive passion. Perhaps the most notable came in his sparring with Justice Antonin Scalia over the doctrine of originalism. In his book Active Liberty, and in his public speaking, Breyer has made a spirited argument for a “living Constitution” that evolves to address modern problems. He has also been a consistent liberal voice on abortion rights and capital punishment, about which he wrote a book with the concise title Against the Death Penalty.

On some issues, however, Breyer’s votes have disappointed liberal Court watchers. In a landmark case, he gave the conservatives the fifth vote they needed to hold that the police have broad powers to take DNA samples from criminal suspects. And when the Court upheld the Affordable Care Act in 2012, Breyer joined Chief Justice John Roberts in striking down the act’s Medicaid-expansion provision on flimsy legal grounds. That part of the decision ended up depriving millions of low-income Americans of health care.

Beyond his votes in individual cases, though, liberals have another reason to hope that Breyer steps down. Breyer is a moderate pragmatist who is loath—as his Harvard lecture demonstrated—to see the conservatives as a bloc that is using its rulings to rewrite the law in favor of the rich and powerful, and against everyone else. Now more than ever, the country needs to have another progressive justice on the Court who sees that reality and is willing to speak forthrightly to the American people in opinions, and perhaps even outside of them, about what is going on. Ginsburg became a liberal icon—“Notorious RBG”—with her passionate dissents on issues such as voting rights. Sotomayor has spoken out with conviction about the impact that Court rulings have had on poor people and people of color. Breyer has not been that kind of critic.

Breyer’s failure to fill that role is not only because of his centrist instincts—even if his ideology were different, he would still be hampered by his communication style. Breyer has a highly intelligent but hardly compelling manner of writing and speaking, and a fascination with things many people consider, say, tangential. (I experienced this firsthand as a student in Breyer’s Administrative Law class at Harvard, where he spent far more time than most of us had bargained for on the legal intricacies of the decision to put airbags in new cars.)

These are dire times on the Court. The conservative majority has been on a campaign for the past 50 years to shift the law in ways that lift up businesses and wealthy individuals and push down the middle class and the poor, and it has had great success. The Court’s campaign-finance rulings, which have opened the floodgates to corporate money, are a major reason Congress has not done more to protect labor unions and why it has not raised the minimum wage since 2009. The Court’s education decisions have helped relegate millions of low-income and minority children to underfunded, racially segregated schools. And its voting-rights decisions have made it more difficult for poor people and people of color to cast ballots—and, therefore, to influence government. In my book Supreme Inequality, I argue that the Court’s rulings of the past half century are a major reason so much income inequality exists today. The damage the Court inflicts on the middle class and the poor is likely to become far worse now that, with Barrett’s arrival, the conservative majority has grown to six sitting justices.

Today’s Court badly needs liberal “great dissenters” who will speak up, even more emphatically, about what the conservative majority is doing. Progressive justices in earlier eras were not afraid to sharply criticize the majority for the impact its rulings had on the most marginalized Americans. Justice Thurgood Marshall was often acerbic regarding his upper-class colleagues’ cluelessness about the lived experience of poor people. Justice William O. Douglas was outspoken in his call for healing society with “law responsive to human needs.”

Justice Breyer has not only not been such a voice; he has helped to blunt criticism of the Court’s ever more right-wing tilt with his insistence that the justices are simply well-meaning legal technicians. Whether he intends to or not, his words have given cover to Alito as he has methodically dismantled the rights of public-sector unions and to Roberts when, in a tragic 2013 decision, he ripped the heart out of the Voting Rights Act.

Breyer’s decision about whether to retire this year could be the most consequential of his career. If he remains on the Court and is succeeded by a Republican nominee, he could help ensure that the conservative majority stays in place for decades. That could make Americans more likely to lose abortion rights, employment rights, and even—it is no exaggeration to say—their democracy. If things go that way, Breyer may end up providing irrefutable proof, perhaps posthumously, of just how wrong he was in his insistence that the justices are not political actors.