Image via The Collection of the Supreme Court of the United States
On January 27, 2022 Justice Stephen Breyer confirmed that he will retire at the end of the Supreme Court’s current term. Justice Breyer has been on the Supreme Court since 1994. He was appointed by Bill Clinton. Before his career as a Supreme Court Justice, Justice Breyer garnered respect and admiration from the legal community. He graduated from Harvard Law School magna cum laude. The list of his legal accolades are seemingly endless; he clerked for Justice Arthur Goldberg, he served as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, he was a professor at Harvard Law. Justice Breyer was an Assistant Special Prosecutor for the Watergate Special Prosecution Force, and he was Chief Counsel for the Senate Judiciary committee. For fourteen years before he went to the Supreme Court he was a judge on the U.S. Court of Appeals. Throughout his career, Beyer cultivated a reputation for being a brilliant legal pragmatist. Through his opinions and dissents, he looks to both the present and future, acknowledging how the law has real life consequences.
Justice Stephen Breyer testifying before the Senate Judiciary Committee in 2011.Jewel Samad/Getty Images
In the introduction of Justice Breyer’s book Making Our Democracy Work he proclaims “we Americans treasure the customs and institutions that have helped us find the better way” (Breyer 2010). Thus is Breyer’s legacy: the better way. For Justice Breyer, the better way is building consensus, avoiding partisanship. This is why Justice Breyer is hard to pin down ideologically. He describes his overarching legal philosophy in his book, arguing that “the Court can, and should, make the Constitution, and the law itself, work well for contemporary Americans” (Breyer 2010). However, in 2016, the Albany Law Review illuminated how Breyer is “an unexpectedly enigmatic figure on the Court today” (Pomerance 2016). In many instances he voted separately from the liberal bloc, making him not strictly ideological. In his book, he explained that the court’s legitimacy is undermined by labelling Justices as conservative or liberal, and differing opinions on cases were the result of differing judicial philosophies and interpretations. In this way, he takes on the role of a pseudo-moderate Justice. This is certainly the case when one contrasts Breyer to Clarence Thomas or Ruth Bader Ginsburg whose opinions are extremely predictable. In the New England Journal of Political Science’s article examining the decision making processes of moderate Justices, it explains “moderates are primarily concerned with whether the public will view the Court's decision as legitimate. Moderate justices are more concerned about public scrutiny and attention than their Court associates” (Foote 2016). Thus, in some instances, and as illuminated in his own book, Breyer acts as a moderate, but whoever takes his spot may not exhibit this same tendency. Breyer’s quiet ideology has been overpowered by the increased polarization of politics.
Supreme Court Justice Stephen G. Breyer, with President Biden, delivers remarks announcing his retirement at the White House on Jan. 27. (Demetrius Freeman/The Washington Post)
The increased perception of political ideology in the Courts has become concerning, especially for Chief Justice John Roberts. In an interview with Jeffrey Rosen, a distinguished legal and political mind, Rosen characterizes the Chief Justice’s concern that “the Court was undermining its democratic legitimacy, making it harder for the public to respect the judiciary as an impartial institution that transcends partisan politics” (Rosen 25). The two most recent Supreme Court nominees, Brett Kavanaugh and Amy Coney Barrett have been highly controversial, contentious, and political appointees. Both Justices have brought an ideological imbalance to the court, a six to three conservative majority. This would be a problem for both Breyer and Roberts, who wish to maintain the legitimacy of the Supreme Court as an institution that supersedes political influence. Looking to the future, President Biden has made a promise to appoint the first black woman to the Supreme Court, and surely will appoint a Justice who will align with his policy goals. The new Justice may not influence the new conservative majority by filling Breyer’s space, but will they alter consensus building on the court? Will their appointment alter public perception of legitimacy? Only time will tell.
I agree with Justice Stephen Breyer on the effects of political interference in the legal system. It has affected how the judges make their legal decisions hence lowering the effectiveness of the court in dispensing justice systems. It creates barriers to the development of democracy and affects how the organization of legal justice in the country purports to promote the jurisdictional mandate and address injustices.
Breyer is a judge that is rarely talked about so it was great to hear about how he is impacting the court. I had never considered that judges would want to remain moderate on their opinions in order to stay favorable in the public eye. I am curious to know your thoughts on the ways the supreme court justice system can be improved because as you mentioned there has been a lot of public debate over the addition of the most recent two judges and the system as a whole. Would love to know your thoughts on this, perhaps in a future post!
I didn't know much about this judge and appreciate someone writing on something overlooked and it helped me learn about someone I probably wouldn't have looked up. I personally like how you highlighted his non-partisanship as that's something we just don't see enough in my opinion. Thank you for the read!