The court after Breyer


Observers have rightly noted that Justice Stephen G. Breyer’s replacement on the Supreme Court will not alter its ideological balance. At 83, he announced his retirement will take effect at the end of the court’s current term, which is set for the end of June, if the U.S. Senate has confirmed his successor. He has been there since 1994.

Currently six conservative jurists outnumber the three moderately liberal ones, and his replacement will make only a modest difference. President Joe Biden, in his campaign, stated that he would nominate the first African American woman should he have the opportunity, and whoever this person is will undoubtedly have progressive views about the law.

Biden’s announcement has riled many conservatives as a crude appeal to affirmative action, an interesting accusation insofar as white men have since the founding of the U.S. enjoyed affirmative action. University of Texas Law Professor Stephen Vladek has pointed out that Breyer’s successor will be the 116th justice of the Supreme Court. Of the first 115, 108 were white men, and just five were women, none of whom were African American.

Most commentators are correct to describe Breyer as a pragmatic liberal. The pragmatism most likely resulted from his years as the Democrat’s counsel, then chief counsel, of the Senate Judiciary Committee, where he worked closely with Massachusetts Senator Ted Kennedy (and a young Delaware senator by the name of Joe Biden). He liked to say he always consulted with the Republican chief counsel to develop policies and legislation that both sides could support.

Those were the days of bipartisanship, when Democrats and Republicans negotiated the solutions to problems and issues, enabling Congress to pass laws important to Americans’ lives. This is what Breyer called “active government,” a political system that resulted in a government that works for the people. In fact, one of his books is titled “Making Our Government Work,” which focuses on this theme through the perspective of the judge.

Beyond negotiation with those who disagree with him, Breyer has however also demonstrated that he is a progressive, though thoughtfully so, on issues like abortion (he has voted to uphold a woman’s right to control her body), gun rights (he acknowledges the right to own a firearm, but also the duty of government to regulate possession), voting rights (he has often promoted the expansion of the franchise to all eligible citizens while opposing gerrymandering of legislative and congressional districts), and on it goes.

Perhaps the two most important positions he has taken over the past three decades are the use of international law and norms and the death penalty. His adversary in both instances was the very conservative Justice Antonin Scalia, who died in 2016, but with whom Breyer, like Justice Ruth Bader Ginsburg, had a warm and collegial relationship. Ginsburg’s close relationship with Scalia was legend: Scalia and his wife traveled with Ginsburg and her husband on vacations, and, most well-known, attended operas together in New York and elsewhere.

Breyer did none of these with Scalia, but engaged in public debates that were often filled with wisdom and, interestingly, humor. Take, for example, their positions on the use of international law and norms. At a debate at American University’s College of Law in 2014, the two jurists engaged in a fact-filled conversation on whether American judges should ever cite international law or the laws of other countries. 

As an originalist who believed that a judge’s duty is to determine the original meaning of the Constitution’s provisions and never try to view them through a 21st century lens, Scalia rejected any reference to them by judges, except when interpreting a treaty with a foreign country. Breyer disagreed, and stated, “If the lawyers find an interesting and useful foreign case, and if they refer to that case, the judges will likely read it, using it as food for thought, not as binding precedent.”

As for the death penalty, they were miles apart there as well, but argued in a civil manner in an important 2015 capital punishment case having to do with the manner of executions by lethal injection. Dissenting, Breyer argued that it was time the court eliminate the death penalty as a violation of the Eighth Amendment’s prohibition of cruel and unusual punishments.

Scalia responded that Breyer was dead wrong: “The framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: They left it to the people to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

The Senate confirmation process promises to be a stormy affair, given the most recent three: Neil Gorsuch, who was nominated after then–Senate Majority Leader Mitch McConnell declined to give President Obama’s nominee a hearing after Scalia’s death; Brett Kavanaugh, who was accused of sexual abuse as a teenager and college student; and Amy Coney Barrett, who was nominated and confirmed just three days before the 2020 presidential election.

The fireworks that accompanied these hearings may well be repeated this spring when Biden nominates Breyer’s successor. This unfortunately will show the great distance we have come from the days when Breyer and Scalia could enjoy a civil conversation in public and in their judicial opinions.


Jack Fruchtman, whose second edition of “American Constitutional History” will appear later this spring, lives in Aquinnah.


  1. Sotomayor will become the senior liberal and gain more power yet she is the weakest of all of them. Kagan has to recalibrate since she often sided with Breyer against Sotomayor and Ginsburg and was a moderate liberal. Roberts cant hold the center due to the other conservatives moving to the right. This will weaken Roberts and if the new appointee is a left winger, Kagan will have to agree more often with conservatives.

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