Stephen Breyer, for better or worse, will apparently soon be gone from the United States Supreme Court. NBC’s legendary court correspondent Pete Williams reported Wednesday that Breyer will soon announce his retirement. The report brought back memories of complicated pleasures of the Supreme Court beat—untangling Breyer’s questions from the bench and understanding the dense reasoning of his opinions. That was sometimes hard work—but it often revealed an intellect unlike any that has served on the Court or is likely to in the future.
If one could imagine a figure combining the learning and philosophy of Oliver Wendell Holmes Jr. with the vaguely beneficent affect of the White Knight from Lewis Carroll’s Through the Looking-Glass, the result would be something like Stephen Breyer. What other justice was educated at Oxford, married into a British noble family, and sprinkled his legal arguments with allusions to the ins and outs of the game of cricket? What other justice would ask questions—some covering two or three pages of printed transcript—that asked lawyers to imagine, for example, that Blackbeard the Pirate was really the multinational “Pirates, Inc.”?
Stephen Breyer was born in 1938 in San Francisco and grew up in a solidly middle-class Jewish home. His father was a lawyer for the city school board. Young Stephen attended public schools and made Eagle Scout. After high school, he blazed a brilliant academic trail: Stanford undergraduate, Oxford as a Marshall Scholar, then magna cum laude at Harvard Law School. He served a short stint in government and taught administrative law at Harvard Law, with leaves to serve as an aide to Senator Edward Kennedy, until President Jimmy Carter appointed him to the U.S Court of Appeals for the First Circuit, the premiere springboard for the Supreme Court. When Justice Harry Blackmun retired in 1994, President Bill Clinton named Breyer to the seat, at least partly as a gesture of goodwill to Senate Republicans, who knew the slender aide from his Senate days and regarded him as a moderate.
As justice, Breyer claimed to have no overarching judicial philosophy like “originalism” or “textualism.” “I am the agent of chaos,” he once told a panel at Georgetown University, explaining that he could not explain his own decisions, or the Constitution in general, in anything other than the most severely pointillistic terms. The explanation may have served as an explanation of his willingness to reach what seemed like compromise results in high-profile cases, in which an Anthony Kennedy or a John Roberts might agree on an opinion that gave each side of the ideological divide some claim to victory. But it also underscored that the label “liberal justice” did not fit his approach to judging either.
But Breyer’s judicial work wasn’t chaotic; in fact, he was the most important expositor since Holmes of the American theory of legal pragmatism—the idea that the real meaning of legal norms is to be found in their concrete results rather than in the formal concepts that describe them. As Breyer explained in his 2005 book, Active Liberty: Interpreting Our Democratic Constitution, that vantage point led him to approach constitutional issues with a question: What rule will most foster genuine democratic participation by Americans of every class and race? In cases dealing with campaign finance, separation of powers, gun rights, and others, he groped for rules that would allow people of all backgrounds to have some access to power. For that reason, he fought against judge-crafted limits on government’s power to protect workers and the environment, and bitterly protested the majority’s ongoing assault on workers’ rights to form unions.
For that reason, too, he allowed his anger to show in a dissent in Parents Involved in Community Schools v. Seattle School District No. 1. In that 2007 case, the newly installed Chief Justice John Roberts led the conservative bloc in striking down the plans of urban “magnet schools” aimed at preventing the resegregation of public school systems. Breyer’s dissent confronted the “color-blind” rule that justices like Antonin Scalia and Clarence Thomas were seeking to fasten onto the equal protection clause. Unlike Thomas, Breyer wrote,
I do not claim to know how best to stop harmful discrimination; how best to create a society that includes all Americans; how best to overcome our serious problems of increasing de facto segregation, troubled inner city schooling, and poverty correlated with race. But, as a judge, I do know that the Constitution does not authorize judges to dictate solutions to these problems. Rather, the Constitution creates a democratic political system through which the people themselves must together find answers.
For much of his tenure, Breyer was the only justice with any real knowledge of, and respect for, Congress and its procedures. Legal conservatives regard Congress as a moral cesspool whose authority must be closely cabined by judges; Breyer, having worked with Senator Kennedy on legislation that crossed political boundaries, had a respect for the legal assumptions and principled compromises that go into drafting statutes.
Breyer’s prose was, on the whole, good-natured, but he was capable of slashing wit. In the 2014 case of McCutcheon v. Federal Election Commission, the conservative majority invalidated a federal statute limiting the total amount donors could contribute to candidates in a federal election cycle. This limitation on total contributions, Roberts explained in a breezy opinion, was a dreadful burden on the rich, who wanted to influence politics but were not as lucky as ordinary citizens who could volunteer on campaigns—the rich were, well, just too busy for that and needed to be able to write checks to as many candidates as they wanted.
The Obama administration defended the statute by suggesting that invalidating it would offer a new channel for donors to evade limits on individual contributions; Roberts dismissed that argument with assurance that, since the FEC had never found such evasive behavior in the past, that meant it couldn’t happen, and if it did, then the FEC would just step right in and stop it.
Breyer read the record differently:
Given this record of FEC (in)activity, my reaction to [Roberts’s] reliance upon agency enforcement of this rule (as an adequate substitute for Congress’ aggregate limits) is like Oscar Wilde’s after reading Dickens’ account of the death of Little Nell: “One must have a heart of stone,” said Wilde, “to read [it] without laughing.”
But Breyer’s best work was not rhetorical but practical. He not only knew how to read a record but actually cared what the facts showed. In that sense, his most poignant monument may be his 2016 opinion for the Court in Whole Woman’s Health v. Hellerstedt. That opinion is likely to stand as the last and best affirmation of a woman’s endangered right to choose abortion—one that, had history turned out differently, would have provided a near-unshakeable foundation for future abortion cases precisely because of its skillful application of law to facts. The issue in Hellerstedt was a Texas statute requiring doctors offering legal abortions to have “admitting privileges” at a nearby hospital, and that abortion clinics must meet the onerous standards for “ambulatory surgery” centers. In both cases, the state of Texas was unable to support its statute with facts showing that these requirements would make abortions safer—though both sides agreed that they would make them much harder to obtain.
The Fifth Circuit had refused to consider this evidence. The laws were “health” laws (it said “health” there right on the piece of paper); as for what good they did for patients’ actual health, the legislature, not the courts, was the judge of that. Breyer insisted that abstract labels cannot overcome human facts. Unlike the Fifth Circuit, the trial judge had blocked the law after it “considered the evidence in the record—including expert evidence, presented in stipulations, depositions, and testimony. It then weighed the asserted benefits against the burdens,” he wrote. “We hold that, in so doing, the District Court applied the correct legal standard.”
Hellerstedt contains no ringing phrases, no allusions to British novelists. It also contains no holes. This case was not chiefly about “liberty” (or, God help us, “our federalism”), Breyer discovered; it was about the lives and the health of women in Texas.
In a better world, the Hellerstedt opinion would stand as the law, and cases like Dobbs v. Jackson Women’s Health Center,in which the conservative majority seems poised to overturn Roe v. Wade by upholding a Mississippi ban on abortion after 15 weeks, would not have been brought. Justice Merrick Garland would be serving with Breyer, and so would a Democratic successor to Justice Ruth Bader Ginsburg.
Instead, however, the Court was the scene of a cynical coup d’etat, in which Mitch McConnell jammed three hard-right judges—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—into place to fulfill a cynical campaign promise made by Donald Trump. The Court faces a crisis of legitimacy unlike any since the 1930s, when the conservative ideologues of that age shredded much of the early New Deal.
Breyer’s love for the Court led him to respond to progressive rumblings about court expansion last year with a slender book. In The Authority of the Court and the Peril of Politics, he somewhat listlessly argued that the American people must believe in the purity of a Court that had been soiled and besmirched in full view of the nation. It was not, to be generous, his best work. Indeed, it had about it a whiff of desperation, an elegiac tone that reminded me of lines by Dylan Thomas:
Good men, the last wave by, crying how bright
Their frail deeds might have danced in a green bay,
Rage, rage against the dying of the light.
Rage has never been Stephen Breyer’s stock in trade. His retirement may represent a belated recognition of the tawdry reality of 2022, or instead simply reflect an 83-year-old jurist’s perfectly understandable decision to hang up his robe. Confirmation of a Biden appointee will not reverse the damage wrought by Mitch McConnell and Donald Trump. But a sterling nomination from Biden and a sane confirmation process could—really, it could!—signify a brief respite of sanity, a gesture, even in 2022, of respect for a good man who served the Supreme Court, and the country, like the Eagle Scout he has always been.
