Stephen Breyer Was a Centrist Problem Solver, the Right Justice for the Wrong Age

From a Washington Post story by Ann E. Marimow headlined “Breyer’s legacy: A centrist, pragmatic problem-solver and defender of the court’s reputation”:

In nearly three decades on the Supreme Court, Justice Stephen G. Breyer routinely found himself on the losing side of contentious issues but managed to cultivate collegiality as a centrist problem-solver, concerned about the real-world implications of the court’s decisions and protecting its reputation.

Often overshadowed by the late liberal icon Justice Ruth Bader Ginsburg, Breyer will leave a legacy when he retires at the end of the current term as a steadfast supporter of abortion rights, the environment and health-care coverage — and for his questions about the constitutionality of the death penalty.

Breyer, a nominee of President Bill Clinton, has served his entire tenure on a court with conservatives in the majority that became more conservative the longer he served. He is retiring at a time when six of the nine justices are ideologically to his right and chosen by Republican presidents.

But Breyer looked for compromise even as he defended affirmative action in university admissions, same-sex marriage and the First Amendment.

“He is a pragmatist who believes deeply that our Constitution and our government should work for the American people, and those beliefs in turn have shaped the way he thinks about the role of the courts in our system of government,” Brianne Gorod, a former law clerk to Breyer and now chief counsel at the Constitutional Accountability Center, said in a statement Wednesday.

“While he was frequently in dissent over the course of his time on the Court, he always remained optimistic, confident that in the end our government will work, and the courts will play an important role in making that happen. That optimism and confidence will also be an important part of his legacy.”

Last term, Chief Justice John G. Roberts Jr. assigned Breyer some of the court’s most significant cases. He wrote the majority opinion when the court turned down a Republican-led challenge to the Affordable Care Act. And in an 8-to-1 ruling, he defended the First Amendment rights of public school students in a case involving the punishment of a high school cheerleader for a profane post on social media.

“It might be tempting to dismiss B.L.’s words as unworthy of the robust First Amendment protections discussed herein. But sometimes it is necessary to protect the superfluous in order to preserve the necessary,” he wrote, using the initials of the cheerleader.

In recent emergency rulings on the death penalty, abortion and pandemic restrictions, Breyer has dissented along with liberal Justices Sonia Sotomayor and Elena Kagan. When the court ended an eviction moratorium put in place by the Centers for Disease Control and Prevention, Breyer said the majority was abandoning its usual procedures.

“These questions call for considered decisionmaking, informed by full briefing and argument. Their answers impact the health of millions,” Breyer wrote.

On the bench, Breyer routinely speaks more during oral argument than any other justice. Harvard Law professor Richard Lazarus, who closely studies the justices, compared Breyer’s lengthy statements and hypotheticals to a professor teaching a large class who then stops abruptly and asks something like, “Well, what do you think?”

Lazarus said Breyer should not be classified simply as a “liberal,” but is much better understood as the court’s resident intellectual — more “law professor than lawyer and more pragmatist than activist.”

“He is the first of his colleagues to eschew overarching jurisprudential philosophies in favor of practical, commonsense solutions consonant with basic notions of social justice,” he wrote in a column about Breyer shared with The Washington Post.

But Lazarus cautioned not to mistake Breyer’s pragmatism for a lack of passion.

“His decades of service on the Court make clear his deep commitment to social justice and the fundamental role of the judiciary in its pursuit,” Lazarus wrote.

In 2000, Breyer wrote for the majority in striking down a Nebraska law banning late-term abortions because it did not include an exception for the health of pregnant women. He lobbied his close friend on the court, Justice Sandra Day O’Connor, to provide the fifth vote, according to an account by Jeffrey Toobin in his book about the court, “The Nine.” Breyer also acknowledged in his opinion the deep divisions over the issue.

“Millions of Americans believe that life begins at conception and consequently that an abortion is akin to causing the death of an innocent child,” Breyer wrote. “Other millions fear that a law that forbids abortion would condemn many American women to lives that lack dignity, depriving them of equal liberty and leading those with least resources to undergo illegal abortions with the attendant risks of death and suffering.”

He subsequently wrote the court’s decisions to strike down restrictions in Texas and Louisiana that required doctors who perform abortions to have admitting privileges at nearby hospitals.

In 2005, Breyer cast the deciding votes in two cases involving public displays of the Ten Commandments that showed his interest in outcomes that avoided conflict. The court allowed a long-standing six-foot-tall monument on the Texas Capitol grounds but rejected newer displays installed in Kentucky courthouses.

After 20 years on the court, Breyer, joined by Ginsburg, used a 2015 dissent in a lethal injection case to say that he had doubts about whether the death penalty can be constitutionally applied and to call for the court to reexamine the issue. Breyer wrote that the country’s use of the death penalty has dramatically changed since the court upheld capital punishment in 1976.

“The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary,” he wrote. “From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.”

Neal Katyal, who was law clerk for Breyer and a former acting U.S. solicitor general, described the justice on Wednesday as a “listener instead of a pontificator.”

While Breyer’s opinions will have a “deep impact on our democracy for decades to come,” Katyal wrote in a Washington Post opinion piece, it is his “execution of those rulings, and the way he carried himself on the court” that may prove a greater legacy.

Ann Marimow covers legal affairs for The Washington Post. She joined The Post in 2005 and has covered state government and politics in California, New Hampshire and Maryland.

Also see the New York Times guest essay by Linda Greenhouse headlined “Stephen Breyer Was the Right Justice for the Wrong Age.” The opening grafs:

Two misfortunes have befallen Stephen G. Breyer during his long Supreme Court career. One, which became apparent about halfway through his nearly 28-year tenure, was that it was his fate to be the quintessential Enlightenment man in an increasingly unenlightened era at the court. The second happened during this past year: the demand from the left that he step down and open his seat for President Biden to fill.

Justice Breyer’s belief in the power of facts, evidence and expertise was out of step in a postfactual age. The protections of the Voting Rights Act were no longer necessary in the South? The Constitution’s framers meant to give the populace an individual right to own a gun? Or, more recently, the federal agency charged with protecting American workers was likely powerless to protect the workplace from a deadly pandemic?

Really? Of course, Justice Breyer was on the losing side.

To my second point, it’s not that requests for him to step down were unreasonable. It’s that they became so vociferous, so belittling, really. It’s as if this distinguished public servant could be shoved out of the way, obscuring any idea of who he is and what his time on the court has meant. That is a loss not only for him — and he certainly deserves better — but also for the rest of us, because his career has much to teach us about the state of the court today.

At 83, Justice Breyer is a decade older than the next oldest justice, Clarence Thomas, and a generation older than the youngest, Amy Coney Barrett, who turns 50 on Friday. Like five of his colleagues (Chief Justice John Roberts and Justices Barrett, Elena Kagan, Neil Gorsuch and Brett Kavanaugh), he was once a Supreme Court law clerk.

But there is a difference. He clerked for Justice Arthur Goldberg during the Supreme Court’s heroic age, the period under Chief Justice Earl Warren when the court seemed to be pushing — or dragging — post-World War II America into recognizing the equality of the races and the rights of criminal suspects. The other five came of age in the subsequent era of judicial retrenchment, that era now reaching a climax.

Although the labels often affixed to Justice Breyer are “pragmatist” and “seeker of compromise,” it has always seemed to me that these, while not inaccurate, miss the mark. They discount the passion beneath the man’s cool and urbane persona, passion that I think stems from his early encounter with a court that understood the Constitution as an engine of progress….

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