Paying Tribute to Justice Breyer’s Quarter Century on the Court


The recent passing of retired Supreme Court Justice John Paul Stevens has rightly generated numerous tributes and commentaries discussing the dozens of high-profile opinions he wrote during his almost-35 years on the Court. But another Supreme Court milestone is also upon us; August 3 marks Stephen Breyer’s completion of 25 years of service as a justice. Justice Breyer has so far written far fewer noteworthy opinions than Justice Stevens did (even discounting for time of service); that is in large part a function of the fact that when Justice Harry Blackmun retired in 1994 (creating the vacancy filled, coincidentally, by Justice Breyer), Justice Stevens became the senior associate justice and the senior member of the liberal wing of the Court. Accordingly, for 16 years (until Stevens’s own retirement in 2010), when Justice Stevens was part of a majority that did not include the Chief Justice, Stevens got to decide who wrote the opinion for the Court (and not infrequently kept major cases for himself). And when he was in dissent he also got to assign the primary dissent (although any Justice can write a dissent of her own) unless the Chief Justice was also in dissent (which was a relatively rare instance since Stevens tended to be on the opposite side from Chief Justices Rehnquist and Roberts in major divided rulings.) By contrast, Justice Breyer, even after a quarter century, is not the senior jurist in the liberal-to-moderate wing of the Court, much less the senior associate justice altogether. (Justices Thomas and Ginsburg have three years, and one year, more seniority, respectively.)  So we should not expect Justice Breyer to have written nearly as many signature majority opinions or leading dissents in closely divided blockbuster cases.

But that does not mean that Justice Breyer has not made an important mark through the authorship of important opinions. To honor his 25 years at the high Court, below I describe my own personal favorite Breyer majority opinion, Breyer concurrence, and Breyer dissent.

My Favorite Breyer Majority Opinion

My favorite Breyer majority opinion comes from the 1998 case of Federal Election Commission v. Akins. I chose this opinion over other strong candidates, such as the majority opinion in National Labor Relations Board v. Canning, in part because Akins deals well with such a troubled and important area of law—“standing” to sue in federal court under Article III of the Constitution and related prudential considerations. Akins involved an action filed against the Federal Election Commission (FEC) to get it to disclose membership, contribution, and expenditure information concerning the American Israel Public Affairs Committee (AIPAC).  The FEC is required by the Federal Election Campaign Act of 1971 to make such information public for entities that are “political committees” under the Act. The FEC had determined AIPAC was not such a “political committee,” and a group of voters, led by Akins, disputed that determination. Before the Court could examine whether the FEC had properly interpreted the Act, the justices had to determine whether Akins, even if he was right as to the meaning of “political committee,” had standing to sue. This in turn depended on whether the harm Akins claimed—the inability to get information to use to make election-related decisions—constituted an “injury-in-fact” that was “redressable” by a federal court, as standing rules require.

Standing doctrine is confused and confusing, often to the point of lacking coherence. And a Verdict column isn’t the place to untangle all of that. But one recurring problem with standing (and other justiciability doctrines, such as the so-called “political question” doctrine I discussed in my last column) is that the Court often behaves as if the “merits” of a plaintiff’s claim is an entirely separate question from whether he should be able to invoke a federal court to adjudicate his arguments. To be sure, some aspects of justiciability doctrine are distinct from the question whether plaintiff has a winning claim that defendant violated (or is about to violate) some law, but often, as in Akins, there is a tight and important relationship between the substantive right that the plaintiff is asserting—in Akins a statutory entitlement to information—and the injury that ought to confer standing. What I like about Justice Breyer’s Akins opinion is that it effectively responded to an energetic dissent from Justice Scalia (and two other justices) by making this relationship between “standing” and “cause of action” more clear. In distinguishing the primary case on which the dissent relied, Justice Breyer observed that the rejection of standing in that earlier ruling “rested in significant part upon the Court’s [substantive] view of [the meaning of the constitutional provision plaintiff invoked there], [and for that reason] it . . . would not control our answer in this case [in which plaintiff is not invoking that constitutional provision but the 1971 campaign finance Act.]” Justice Breyer’s key contribution was that resolving the standing question requires resort to “legal logic” that in turn rests on the particular substantive provisions of law that are being invoked. Although the Court hasn’t always heeded this lesson (even after Akins), Justice Breyer did what he could to move a troubled body of law in the right direction.

My Favorite Breyer Dissenting Opinion

My favorite Breyer dissent comes from the same year, 1998, in the Clinton v. New York dispute, a case in which (interestingly enough) Justice Stevens wrote the majority opinion. Justice Stevens and his majority colleagues struck down the so-called federal Line Item Veto Act (LIVA), which sought to enable the President to decline to spend federal monies even when Congress appropriated them, provided the President determined the failure to spend wouldn’t hurt the national interest and would save money, and subject to override by two-thirds of both houses of Congress. The case and the statute are complex, and Justice Stevens’s opinion does not make much sense to (almost) every sophisticated commentator I’ve ever heard discuss the case. The big problem with striking down a law that says the President can spend “$0 or $X” on a congressionally approved item is that the Court had already upheld against constitutional challenge many statutes that allowed the President to spend “$0 to $X.” In these earlier cases, the Court decided that such “$0 to $X” laws didn’t confer impermissible power or discretion on the President. Justice Stevens’s only response to these earlier cases was to say that the other laws did not give the President the “unilateral power to change the text of duly enacted statutes” but the LIVA did. Sillier words are hard to find in the U.S. Reports, insofar as presidential exercise of the power to decline to spend (called “cancellation” in the LIVA) reflected an implementation of—not an amendment to—the text of Congress’s budget enactments as interpreted against the backdrop of LIVA. (Justice Stevens’s intellectual strength—his unusual way of looking at things—was also sometimes his weakness.) Justice Breyer’s dissent (joined in relevant part by Justices O’Connor and Scalia) straightforwardly pointed this out, and also thoroughly debunked all the other arguments made by the litigants as to why or how the Line Item Veto Act ran afoul of constitutional limits. More generally, the dissent did the four things all excellent opinions (whether majority, concurring, or dissenting opinions) must do: it reached the best result that could be reached in the case; it did so for essentially the right reasons; it fully and fairly refuted the arguments on the other side(s); and it did all this in a clear, well-organized and concise manner.

My Favorite Breyer Concurring Opinion

This brings me to my favorite Breyer concurrence. For this we fast forward seven years to the 2005 case of Miller-El v. Dretke. This case involved another vexing area of constitutional law—the use of race in the exercise of peremptory challenges in jury selection. In Batson v. Kentucky (1986), the Court held that while prosecutors can remove jurors for no particularly good reason via the peremptory challenge device, they cannot do so on account of race. (Batson has since been extended by the Court from prosecutors to all lawyers, and from race to gender as well.) My own view since the 1990s has been that if the Court is serious about eliminating the use of race (or gender) in the exercise of peremptories, the Court needs to eliminate peremptories themselves; trial and appellate court judges simply cannot effectively police lawyers’ use of peremptories on a case-by-case basis.

Justice Breyer laid out this abolitionist stance in Miller-El. He made the case eloquently, pointing out that “[g]iven the inevitably clumsy fit between any objectively measurable standard and the subjective decisionmaking” inherent in the use of all peremptories,” discriminatory use of peremptories is nearly impossible for judges to rein in. He closed by saying that in light of practical as well as theoretical considerations, “I believe it necessary to reconsider Batson’s [framework] and the peremptory system as a whole.”

Justice Breyer’s concurrence in Miller-El was strong, so strong that I’m surprised he didn’t revive or even invoke it in last year’s race-based peremptory case, Flowers v. Mississippi, in which Justice Kavanaugh wrote for a 7-person majority striking down a Mississippi prosecutor’s use of peremptory challenges under the Batson rubric. The Court (and Justice Breyer) reached the right result, but Justice Breyer simply joined Justice Kavanaugh’s application of current doctrine; he did not (as he did in Miller-El) call for a more fundamental reconsideration of all peremptories. In a related area of law, capital punishment, several justices (most notably Justices William Brennan and Thurgood Marshall) would routinely write separately to express their view that American capital punishment in the late twentieth century violated the Eighth Amendment in all instances, even if they also joined opinions laying out other reasons for invalidating a death sentence in a given case. It will be interesting to see whether Justice Breyer resurrects his Miller-El concurrence in future peremptory-challenge cases that are sure to come to the Court.

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