Institutionalists and even conservatives may find in the coming years that they really miss the presence of now-retired Justice Stephen Breyer on the Supreme Court.
By almost all accounts, Breyer was a mensch. Cordial and dedicated to collegiality and institutional stability, Breyer worked to maintain what remains of the high court’s status and its sense of itself as a less partisan and less political (even if far from entirely apolitical) institution. Attitudinally, this is important: The nation needs the court to act as an honest broker to the greatest extent possible, which first requires that the justices continue seeing themselves, and trying to act, that way.
“Even if a Democrat or Republican appointed you, you’re there as a judge, and that means you better be there for everybody,” Breyer told the Washington Post last September. “Internally, you must feel that this is not a political institution, that this is an institution that’s there for every American.”
Toward that end, Breyer consistently and courageously rejected calls from today’s leftists to support “expanding” the number of Supreme Court justices (otherwise known as “court-packing”).
“It’s risky changing the structure,” Breyer told the Washington Post. “It’s risky for if one party can change the structure to add more favorable people, then the other party can do the same, and the risk, of course, is that the public in general will become less convinced that it’s being decided as a matter of law, and they will be less likely if they think we’re junior league politicians to follow what the court said.”
Breyer put his jurisprudence where his mouth was. During his 28 years on the court, Breyer usually was the most likely member of the “liberal bloc” of justices to join conservatives or centrists in opinions, or to urge narrower liberal readings of the Constitution rather than more sweeping ones. While no conservative would ever consider Breyer an ally in constitutional interpretation, conservatives knew in most instances they could at least expect him to attempt to keep an open mind.
In decisions handed down the same day in 2005, for example, Breyer joined liberals to form a majority outlawing one sort of public display of the Ten Commandments but joined conservatives to form a 5-4 majority allowing a different, long-standing display of the Commandments. Likewise, he sided with conservatives rather than two fellow liberals in 2019 to approve the continued display of a large cross on public land in Bladensburg, Maryland, first erected as part of a memorial honoring 49 Americans killed in World War I.
In a separate part of the 2012 case in which Chief Justice John Roberts famously changed his vote to find a tortured explanation for saving Obamacare, Breyer joined conservatives to form a 7-2 majority saying Congress could not coerce states to accept a particular expansion of Medicaid. And in the highly controversial 2000 presidential election dispute of Bush v. Gore, most of the media focused on the 5-4 partisan court split that determined the remedy that effectively (and correctly) recognized George W. Bush as the victor. They largely ignored the fact that liberals Breyer and David Souter joined conservatives for a 7-2 majority holding that the leftist Florida Supreme Court’s “scheme for recounting ballots was unconstitutional.”
And that’s just a small sampling.
In sum, Breyer was a liberal pragmatist, not a leftist ideologue. In his 2005 book Active Liberty, Breyer paid homage to “well-known arguments for judicial modesty.” Breyer’s replacement, Ketanji Brown Jackson, seems unlikely to prove nearly as modest — or as (relatively) centrist. As Breyer steps aside, conservatives should lament his retirement and wish him well.
