Stephen Breyer Tried to Compromise On An Increasingly Uncompromising Supreme Court

On Wednesday, Supreme Court Justice Stephen Breyer announced that he will retire from the court at the end of this year’s term, setting up Democrats to nominate and confirm his successor this summer — in other words, in the months leading up to the 2022 election. 

Breyer’s retirement was widely expected, given his age and the Democrats’ precarious hold on the Senate. If anything, the bigger surprise was that the 83-year-old liberal justice, who was nominated to the court by President Bill Clinton in 1994, waited this long to relinquish his seat. Plenty of Democratic-appointed judges handed in their retirement letters as soon as it became clear that a Democratic president could replace them (Republican-appointed judges have done this with Republican presidents, too), but Breyer decided to hold on for another year — probably out of a desire to weigh in on the stunning array of high-profile issues that the court is considering this term.

From a political perspective, Breyer’s retirement is nowhere near as consequential as other recent Supreme Court vacancies. Assuming the Democratic majority in the Senate coalesces around Biden’s nominee, Breyer will in all likelihood be replaced by another liberal, leaving the ideological balance of the court the same as it is now. But Breyer’s departure is still significant for the ways in which it will change the court. For one thing, his judicial approach — which emphasized pragmatism and compromise — is going out of vogue in an increasingly polarized judiciary. 

His replacement will likely make history, too. Biden has promised to nominate the first Black woman to the Supreme Court, and now could be his best opportunity to make good on that pledge. Having more diversity on the high court won’t necessarily change outcomes in hot-button cases, especially given the overall conservative bent of the court, but it could add more complexity to the court’s decision-making on issues like affirmative action, which the justices just agreed to consider in a new set of cases.

Breyer’s pragmatic approach is increasingly rare

Throughout his tenure on the Supreme Court, Breyer has been a reliable member of the liberal coalition. According to the Martin-Quinn scores, a commonly used measure of judicial ideology, Breyer has been a very consistent center-left justice — in recent years, his score was almost indistinguishable from Justice Elena Kagan, another moderate liberal.

Breyer prizes compromise, and as the court has become more ideologically polarized, he’s tried to find points of common ground with the conservative justices, even on relatively high-profile issues, like religious liberty. That pragmatic streak was on display in 2005, when he served as the pivotal vote in two separate cases about public displays of the Ten Commandments. In one of the cases, he voted with the conservatives to uphold the display; in the other, he voted with the liberals to strike it down. Over the years, he joined the conservatives in a variety of other important religion cases, including a dispute over a 40-foot cross that was displayed on public property in Maryland and a fight over whether Missouri could exclude a church from a public grant program for playground resurfacing.

In those cases, he often stressed the need to avoid religious disagreements — which sometimes led to outcomes that upset liberals. In the 2005 case where he voted to uphold a Ten Commandments display in Texas, for instance, he wrote that although it was a “borderline case,” ruling that it was unconstitutional could lead to the removal of similar displays around the country and “thereby create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid.”

And his breaks with his liberal colleagues haven’t been on religion alone. According to a recent analysis by political scientists Lee Epstein, Andrew Martin and Kevin Quinn, Breyer cast the lowest percentage of liberal votes of any of the three Democratic appointees who served with him. Epstein, Martin and Quinn found that most of those disagreements were in the area of criminal procedure, particularly in cases related to search and seizure.

Of course, Breyer has been an outspoken liberal voice on other issues, including reproductive rights and the death penalty. In 2016, he wrote the majority opinion in Whole Woman’s Health v. Hellerstedt, a case where the justices struck down several provisions of a Texas abortion law and reaffirmed the constitutional right to abortion. And he’s authored plenty of high-profile dissents too. According to an analysis we conducted when Justice Ruth Bader Ginsburg died in 2020, he had the third-highest dissent rate of any justice since 1953, coming in just behind Ginsburg and Justice Thurgood Marshall. One of his most famous recent dissents was in a 2015 case involving a challenge to a specific execution drug, where he called on the justices to reconsider the constitutionality of the death penalty itself.

But Breyer plainly became concerned about the court’s reputation, particularly after Ginsburg died and was replaced by Justice Amy Coney Barrett, which gave the conservative majority even more power. He’s spent the years since then trying to convince Americans that the court was fundamentally a nonideological institution, even publishing a short book where he argued that the court — despite its clear conservative tilt — was not a political institution. 

That commitment to preserving the judiciary’s nonpartisan image — and staying mostly in line with public opinion — put Breyer increasingly out of step with the court’s trajectory. This year’s term isn’t over yet, but at least some of the Supreme Court conservatives seem ready to veer sharply outside the mainstream on abortion, gun rights and other high-profile issues. Justice Sonia Sotomayor, meanwhile, shows no desire to make nice with the conservatives — in a recent dissent, she called the court’s decision to leave a highly restrictive Texas abortion law in place a “disaster” and a “grave disservice to women in Texas.”

In a 2020 interview, Breyer told reporter Dahlia Lithwick, “The best is the enemy of the good. … But if you have a choice between achieving 20 or 30 percent of what you’d like or being the hero of all your friends, choose the first.” That attitude seems unlikely to be especially popular at the Supreme Court going forward — among liberals or conservatives.

His replacement will likely make the court more diverse

On the 2020 campaign trail, Biden promised that if he had the opportunity to name a justice to the Supreme Court, he would nominate a Black woman. Now with Breyer’s retirement, he has his chance. It would be a historic appointment. A Black woman has never served on the Supreme Court.

In the court’s history, there have been only five female justices, and only one (Sotomayor) has been a woman of color; meanwhile, there have been only two Black justices, both male. Black women are also heavily underrepresented in the federal judiciary as a whole. Only 5 percent of active federal court judges are Black women, and on the powerful courts of appeals, there are only six Black female judges. 

This means that Biden has few options to choose from — at least, if he wants to nominate someone who’s already served as a judge. One leading possibility is Judge Ketanji Brown Jackson, who was named to the powerful U.S. Court of Appeals for the D.C. Circuit early in Biden’s presidency. Other possibilities include California Supreme Court Justice Leondra Kruger, U.S. District Judge J. Michelle Childs — who was also recently tapped for the D.C. Circuit but has yet to be confirmed — and U.S. District Judge Leslie Abrams Gardner, who is the sister of Georgia gubernatorial candidate Stacey Abrams.

Biden has already done a lot to shift the number of Black women in the courts, too. As Elena Mejía and I wrote in December, he’s already coming through on his pledge to diversify the judiciary in a big way. According to our analysis, the vast majority of the people who have been confirmed under his presidency are women or people of color. So there’s no reason to expect that he won’t follow through on his promise to nominate a Black woman to the Supreme Court, especially since his press secretary said on Wednesday that he “certainly” stands by his commitment.

Whomever Biden nominates won’t shift the court’s ideological balance, because conservatives have such a strong majority, but it could make a difference in other ways. Research on the lower courts has found that simply having more Black judges on appeals court panels can change the outcome on certain issues related to race, like affirmative action.

Of course, on such an ideologically divided court, there are probably limits on this kind of influence. But it’s noteworthy, too, that if Biden replaces Breyer with a Black woman, the liberal minority will be entirely composed of women, including two women of color. The question, of course, is what kind of judicial philosophy Breyer’s replacement will pursue — and how she will navigate an increasingly polarized court.