Justice Stephen Breyer’s impending retirement has already sparked inevitable discussion about his replacement and what it will mean for the Supreme Court. In the short run, little will change in the ideologically divisive cases that garner the most attention. Assuming President Biden’s nominee clears the evenly divided Senate, to produce a liberal outcome, three Democratic appointees will still need to find two votes among their Republican colleagues—with Chief Justice John Roberts as by far the most likely “swing” vote, followed on occasion by Justice Brett Kavanaugh. In the long run, Breyer’s retirement now rather than after the midterm elections will mean that establishing a liberal majority becomes possible in the slightly less distant future.
Yet there is something unseemly about the rush to consider the future. Lamenting his mother’s swift remarriage following the death of his father the king, Hamlet complained bitterly that “the funeral baked meats did coldly furnish forth the marriage tables.” Accordingly, let us take a moment—however brief—to reflect on Justice Breyer’s career.
Bad Timing
President Clinton and the Senate elevated Justice Breyer from his federal appeals court seat to the Supreme Court in 1994. He has served with honor and integrity. Still, it is difficult even for people like me—who study the Court for a living—to name more than a handful of Breyer majority opinions in important cases.
Why? As Dean Vikram Amar observed here on Verdict in the summer of 2019 on the twenty-fifth anniversary of Breyer’s appointment, he was too far back in line for the best assignments. When the Chief Justice is in the majority, he assigns opinions; when not, the most senior Justice in the majority does. Yet Justice Breyer only became the most senior Justice of the liberal bloc in the fall of 2020, following Justice Ruth Bader Ginsburg’s death. Since that time, the liberal Justices have needed the vote of the Chief Justice to garner a majority, ensuring that Justice Breyer would continue to lack the assignment power.
Consequently, from federalism to administrative law to individual rights, Justice Breyer’s most memorable writing has been in concurrences and dissents.
The Fox’s Curse
According to an aphorism of the ancient Greek poet Archilochus, “a fox knows many things, but a hedgehog knows one big thing.” In a well-known essay, philosopher Isaiah Berlin divided thinkers into hedgehogs—who repeatedly return to a single core idea—and foxes—who explore a great many different ones. Although hedgehogs tend to be more influential, foxes tend to be more nuanced and thus more likely to be correct.
Justice Scalia—who served alongside Justice Breyer for most of their respective time on the Court—was a hedgehog. His “one big thing” was that judges should stick close to the original public meaning of the text of statutes and constitutional provisions. Never mind that Scalia did not consistently practice what he preached—often seeing his own policy views in texts that were either unclear or, in one instance concerning racial classifications, not even there. Despite his uneven fidelity to textualism and originalism, Scalia established those interpretive approaches as his brand.
Of course, hedgehogs and foxes are ideal types. No one is all hedgehog or all fox. It is even possible to dispute what a hedgehog’s one big thing is. For example, Harvard Law School Dean John Manning has argued that for Scalia, textualism and originalism were secondary to his concern for “limiting free-form judicial policymaking.” As Dean Manning himself acknowledges, Scalia seems to have honored this principle in the breach, but that acknowledgment does not undercut the basic observation that Scalia was a hedgehog.
Breyer is a fox. It is possible to miss Justice Breyer’s foxiness because in his work both on and off the Court, he sparred with Scalia, offering purposivism—the notion that courts should look beyond the text of a statute to its animating purpose in giving it effect—as an antidote to Scalia’s textualism. And Breyer offered proportionality analysis (borrowed in some measure from courts in other constitutional democracies) as an antidote to Scalia’s conception of the law as a collection of rules. In consistently championing a methodology, wasn’t Breyer simply espousing a different “one big thing” from Scalia?
In short, no. By their nature, the balancing tests that proportionality invokes give weight to numerous factors depending on context. Breyer’s one big thing was to consider a great many, potentially unknowable number, of little things.
Consider two cases the Supreme Court decided in 2005 involving displays of the Ten Commandments on government property—one involving the Texas capitol grounds and the other a Kentucky courthouse. Four Justices thought that both displays violated the First Amendment’s prohibition on establishment of religion. Another four Justices thought neither display offended the First Amendment. Justice Breyer, uniquely, split the difference, voting to permit the Texas display but not the Kentucky one. That juxtaposition might seem perverse. After all, the Texas case involved a six-foot-high monolith firmly rooted in the ground, whereas the Kentucky case involved a removable document on a wall. Yet Justice Breyer was exquisitely sensitive to context: people often have no choice but to come to court, where official business occurs; meanwhile, the very rootedness of the Texas monument would have made removing it a symbolic act that could be understood as hostile to religion.
My point is not that Justice Breyer was necessarily right in the Ten Commandments cases but that his methodology was foxier than that of any of his colleagues. Taking everything into account, he reached one judgment in one case and a different judgment in the other. For Breyer, the scales of justice are sensitive to fine differences in weight.
The Undoing
Of course, Justice Breyer has substantive as well as methodological commitments. Sadly, the Court he will leave seems poised to abandon those he most cares about. Two recent cases illustrate the point.
One of Breyer’s most notable majority opinions—Whole Woman’s Health v. Hellerstedt in 2016—struck down two provisions of Texas law that, in the guise of promoting health, imposed pointless obstacles on abortion providers. Very much in keeping with Breyer’s overall balancing methodology, his opinion modified what had previously been called an “undue burden” test to make it an actual consideration of costs and benefits. That contribution will almost certainly be erased when the Court decides a Mississippi abortion case currently pending and either severely curtails or completely eliminates the abortion right. Indeed, a case decided earlier this term on ostensibly procedural grounds has already severely curtailed the abortion right in Texas. Ironically, that case also involves Whole Woman’s Health as the lead petitioner.
Meanwhile, Justice Breyer’s views about his pre-judicial specialty are rapidly being undermined. Before becoming a judge, Breyer worked as a Harvard Law professor and for a time as an advisor to Senator Ted Kennedy. Breyer’s expertise concerned regulation and administrative law. As a Justice, he is strongly committed to the longstanding principle that courts should give deference to reasonable agency decisions. That principle is under assault now from the conservative super-majority of the Court that appears determined to rein in the power of Congress to delegate important decisions to agencies and thus, not coincidentally, to hamstring regulation in the public interest.
Nothing so perfectly encapsulates the Court’s rejection of Justice Breyer’s commitments as a sentence in the recent decision invalidating the Biden administration’s rule requiring vaccinations (or testing and masking) in workplaces with a hundred or more employees. After noting that the businesses challenging the rule contended that it would cost them billions of dollars and the government countered that it would save over 6,500 lives while preventing hundreds of thousands of hospitalizations, the majority demurred: “It is not our role to weigh such tradeoffs.”
Needless to say, Justice Breyer dissented. Although he made his points more thoroughly, in effect he said: Right! It’s the agency’s job to weigh these tradeoffs and it did. Moreover, if we are to judge, of course judgment involves weighing tradeoffs. That’s what judging is.
In the end, perhaps Breyer is a hedgehog after all. If so, the big thing he knows is the same big thing that was known by Harry Blackmun, the Justice whom he replaced. As Blackmun wrote in a 1989 dissent, “compassion need not be exiled from the province of judging.” If a majority of the colleagues Breyer leaves behind have forgotten that—or never grasped it in the first place—that’s their flaw, not Breyer’s.
