America has changed radically since 1994. Even so, Stephen Breyer’s departure from the Supreme Court turned out to be strikingly similar to his arrival 27 years ago. Standing with President Biden in the White House in January, Breyer announced his retirement with a paean to pluralism. America is a nation of “more than 330 million people,” he said, “so different in what they think. And yet, they’ve decided to help solve their major differences under law.” That echoed his opening statement in 1994 to Biden and the rest of the Senate Judiciary Committee of which the future president was chairman. In a country full of people “from so many different backgrounds and circumstances, with so many different needs and hopes,” Breyer said then, our Constitution’s purpose “is to help them live together productively, harmoniously, and in freedom.”
Unfortunately for Breyer, the resemblance didn’t end there. The indignities he suffered in his last year on the bench—with Democrats campaigning openly for his retirement and then evidently leaking his decision before he could announce it himself—call to mind the circus that surrounded his appointment to the Court.
In 1994, President Clinton announced Breyer’s selection so abruptly that Breyer himself missed the Rose Garden declaration; only days later did he get a White House welcome, at a follow-up. And though Clinton and Breyer planned to go for a jog before that second event, Clinton wound up taking off without him. “I don’t know where he is,” Clinton told reporters. “I thought he was going with me.” Breyer was left behind, and not for the last time.
His best qualities endured throughout his tenure on the Court. He exuded a love for his country and its institutions, with a kind of absent-minded professor’s charm, from start to finish. And he maintained an admirable degree of humility. In recent decades, the Court has seen an interesting trend: Each time a new justice becomes the Court’s senior liberal, he or she suddenly takes on a new character. Harry Blackmun denounced capital punishment’s “machinery of death”; John Paul Stevens became a bulwark of judicial power during the global War on Terror; Ruth Bader Ginsburg became the cultural superstar “RBG.” Yet when Justice Breyer became the Court’s senior liberal, his public persona did not change. Indeed, if anything, Justice Sonia Sotomayor seemed to overshadow him on the national stage. For nearly half of his tenure, Justice Breyer was the Court’s junior justice, which meant he was stuck with the unglamorous chores of taking notes and answering the door during the justices’ private conferences. He wore his lesser status lightly, and then he wore seniority lightly, too.
So he never galvanized progressives, who generally treated him as a letdown. President Clinton already had passed him over once, for Ruth Bader Ginsburg in 1993. A year later, Clinton nominated Breyer only after agonizing about it for more than five weeks. The leaky White House made clear that the president really wanted to pick a friend, Bruce Babbitt, or a fellow Arkansan, Judge Richard Arnold. But Babbitt was politically problematic, and Arnold was ailing with cancer. Also, Senator George Mitchell had already turned it down. So Clinton picked Breyer.
At the first White House event—the one without Breyer—the president spoke glowingly of Babbitt and Arnold. Yet when the discussion turned to the actual nominee, Clinton “sounded subdued and uninspired,” according to the Washington Post’s Ruth Marcus. The “central fact of Clinton’s selection of the 108th justice,” she reported, was that Clinton “did not get exactly what he wanted. Instead, he settled for Breyer as the least risky alternative.”
Today, Democrats are in no mood to settle. With the Supreme Court more amenable than ever to a rule of law anchored in the Constitution’s original meaning, and with Republicans having appointed three more justices since giving the silent treatment to Merrick Garland’s nomination by Barack Obama in 2016, Democrats are openly questioning the Supreme Court’s very legitimacy and threatening to pack the Court.
At the very least, they relish the chance to appoint a justice more to their own liking while they still hold both the White House and the Senate. Years ago, after the Republican-appointed Justice David Souter took a leftward turn, conservatives’ rallying cry became “No More Souters.” Today, Democrats’ message seems to be “No More Breyers,” and they started with Breyer himself.
In essays and op-eds marking the justice’s retirement, a common theme quickly emerged. “The Court Loses Its Chief Pragmatist,” declared the Atlantic. To the Washington Post, Breyer was “a centrist, pragmatic problem-solver.” Harvard’s Noah Feldman declared in Bloomberg that Breyer was “one of the great pragmatists in the court’s history.” And Harvard Law School, where Breyer taught, headlined its encomium, simply, “Pragmatic Justice.”
This, too, harkened back to Breyer’s confirmation hearing, where constitutional scholars testifying on his behalf referred often to his “pragmatism.” But what did that actually mean? When Senator Orrin Hatch asked him about it, Breyer the nominee explained that judges must interpret and apply “a body of rules and institutions and so forth that is supposed to work properly for people.” And, he added, “I would imagine that on the Supreme Court, what I would be bound by is the words, the history, the precedents, the traditions, all of those things which in fact go up to make this great body of institutions.”
Throughout the confirmation hearing, Breyer’s approach was set in contrast to the constitutional originalism that was already ascendant on the Court just years into Antonin Scalia’s and Clarence Thomas’s own tenures on the Court. Indeed, Senator Biden opened the hearings not by discussing Breyer’s jurisprudence, but by describing Scalia’s, and Thomas’s, and Robert Bork’s.
At the second White House nomination event, the one with Breyer, CNN’s Wolf Blitzer put the question bluntly. “There are many liberal Democrats who have been hoping someone would be named who would serve as a strong counterpoint to Justice Scalia. Do you envisage yourself as someone who can stand up to his more conservative principles and argue the merits of the liberal case effectively and move that Court to a different direction?”
“If I’m confirmed,” Breyer replied, “I envisage myself as a person who will do the best possible job I’m capable of as a justice of the Supreme Court.”
It was the kind of vague circularity that Bill Clinton could appreciate. (“I wish I could answer questions like that,” he chuckled.) And the crowd greeted it with applause. But if anything, his answer made clear that there would be no imminent counter-jurisprudence with the substantive weight or rhetorical punch of Scalia’s and Thomas’s originalism.
To recognize this is not to slight Justice Breyer. He never fashioned himself as a lion of constitutional liberalism and gave no indication that he ever aspired to anything like it. He was a highly respected scholar of administrative law, writing insightful articles and a major casebook on the relationship between judicial courts and administrative agencies. And he wrote thoughtful books on regulatory policy, such as Breaking the Vicious Circle: Toward Effective Risk Regulation (1993) and Regulation and Its Reform (1982). He applied his reform-minded approach as counsel to the Senate Judiciary Committee, and at the Justice Department’s Antitrust Division, before his 1980 appointment to the U.S. Court of Appeals for the First Circuit. In none of these roles, however, did he venture a comprehensive jurisprudential alternative to Scalia’s.
Yet once Breyer and Scalia became colleagues, it was impossible to avoid the contrast. Indeed, the two friends embraced it, often making joint appearances to debate their respective approaches.
But mostly they expressed their differences in judicial opinions, where Justice Breyer was as reliably liberal as Scalia was conservative. Virtually every issue that divides justices—abortion, guns, affirmative action, federalism, and the rest—divided Breyer from Scalia and the other conservatives. There were, to be sure, important exceptions: In NFIB v. Sebelius (2012), for example, Justice Breyer (and Elena Kagan) actually joined the conservatives in holding that Obamacare’s attempt to force states to expand Medicaid was unconstitutional. But in general, Breyer’s pragmatism seemed basically to be the familiar liberalism, perhaps with longer explanations.
And it therefore paled in comparison with the ascendant originalism, substantively and rhetorically. Harvard’s Laurence Tribe groused to President Obama, in a 2009 letter, that “it has been all too easy for Scalia to make his rigid and unrealistic formalism seem synonymous with the rule of law and to make Breyer’s pragmatism seem mushy and unconstrained by comparison.”
After his first decade on the Court, Breyer undertook to write a series of books describing and defending his jurisprudence more systematically. In Active Liberty: Interpreting our Democratic Constitution (2005), he urged that “the Constitution’s democratic objective” was not merely to constrain judges but to empower judges to help “make sense of our Constitution’s structure, illuminating aspects that otherwise might seem less coherent,” in order to “yield better law—law that helps a community of individuals democratically find practical solutions to important contemporary social problems.”
He further elaborated the theme in Making Our Democracy Work: A Judge’s View (2010), arguing that the Supreme Court “should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing.” They should instead regard it “as containing unwavering values that must be applied flexibly to ever-changing circumstances,” so that the Constitution will “work well for Americans,” who in turn “must accept the Court’s decisions as legitimate.” And in The Court and the World: American Law and the New Global Realities (2015), he argued that American law can benefit when judges interpret at least some statutes and constitutional provisions with an eye to other nations’ own experiences.
Each of those books contested conservative originalism. But his latest book—published just before he announced his retirement—stands athwart a very different movement. In The Authority of the Court and the Peril of Politics (2021), Justice Breyer criticizes those who treat the Supreme Court as a merely political body. The Court’s ability to defend the Constitution’s rule of law, in cases such as Brown v. Board of Education, depends on the public’s willingness to accept its decisions as legitimate. But, he warns, that legitimacy is increasingly difficult to sustain in an era when public trust in institutions is at a low ebb, and when “reporters and commentators” reflexively characterize judges as partisan warriors.
For example: “The present Court is often described as having a conservative majority,” he writes, yet in evaluating it, Breyer urges that we consider not only Bush v. Gore and other Republican-friendly decisions but also the myriad recent cases where the Court refused to entertain Donald Trump’s post-election lawsuits, or where it ruled against “immigration, census, and other orders, rules, or regulations promulgated by” the Trump administration.
In short, Breyer’s new book challenges those who are attempting to delegitimize the Roberts Court, and especially those who would attempt to pack it with additional seats. Citing FDR’s infamous threat against the Court, and new court-packing threats in our own time, Breyer writes that “my goal is to ensure that those who debate these proposals also consider an important institutional point, namely how a proposed change could affect the rule of law itself.”
Invoking “the trust that the Court has gradually built, the long period of time needed to build that trust, and the importance of that trust in a diverse nation that values, indeed depends upon, a rule of law,” Breyer implores court-packers to “think long and hard before embodying those changes in law.” Court-packing is “a temptation better resisted.”
But how many progressives today would accept his premise? They no longer trust the courts, especially not the Supreme Court. Senator Elizabeth Warren wrote recently to dispute “the legitimacy of every action the current court takes.” To her, and to those of like mind, the conservative justices’ opinions—indeed, their very appointments to the Court after Merrick Garland’s failed nomination—render them illegitimate and unworthy of the public’s trust.
In The Authority of the Court and the Peril of Politics, Justice Breyer writes with a bluntness and urgency that matches or exceed anything else that he ever has written. A few months after its release, when he visited the White House to announce his retirement, his remarks echoed the book’s worries. “People have come to accept this Constitution,” he said, holding up a pocket version, “and they’ve come to accept the importance of the rule of law.” But as Lincoln and Washington knew, “it’s an experiment, it’s an experiment,” and its viability cannot be taken for granted. “I’m pretty sure it will,” he offered, before asking: “Does it surprise you that that’s the thought that comes into my mind today?”
Twenty-seven years ago, when Biden convened Breyer’s confirmation hearing, he remarked that the Court recently had “seemed poised to reconsider many basic questions that most of us and most of the legal community thought had already been well settled.”
Today he could introduce Justice Breyer’s successor with the very same words. Yet now there is much more at stake. Conservatives continue to urge the Court to reconsider the precedents on abortion, affirmative action, and other issues. But progressives are now reconsidering the Supreme Court itself, and the kind of justice that they would appoint to it.
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