Supreme Court Justice Stephen Breyer will be missed — not necessarily for his votes but for his voice, one that valued collegiality and civility on an increasingly politicized court.
The 83-year-old Breyer is stepping down after 28 distinguished years on the High Court. He came into public service at a time when compromise and searching for consensus were common in politics and in the courts.
He’s leaving at a time when that sort of comity is rare — including on the Supreme Court, which is now seen as deeply partisan since Republicans manipulated normal procedures to stack the court. Its standing with the public has hit an all-time low, as only one in four Americans expresses high confidence in the Supreme Court, according to the latest Gallup poll.
This will be exacerbated after the decisions this past week overturning a half century of protections for abortion rights and rejecting a gun control law, following several mass murders with guns. Breyer was not only in the minority on those decisions, but the right-wing rush undercuts his belief that the High Court is not that politicized.
Breyer, a man of social charm, isn’t giving any interviews until this court session is over. So, I turned to two very knowledgeable sources about the justice and his legacy.
Ken Feinberg has been a close friend of Breyer’s since they worked together for the late Sen. Ted Kennedy more than 40 years ago. Starting with the 9/11 Compensation Fund, he has become America’s leading special master on dispute resolutions.
Seth Waxman is a prominent Washington lawyer who has argued more than 80 cases before Justice Breyer. He was the lead lawyer for President-elect Biden in beating back fraudulent election challenges by Donald Trump.
Feinberg states: “What’s most important about Breyer is not his liberal credentials or how he helped orchestrate the constitutionality of the Affordable Care Act or other compromises. He kept the court civil. He got along with everyone; his closest friend there may have been Clarence Thomas.
“Stephen was the glue that kept the court collegial, compromising the best he could. It will be much harder to keep the court above the fray when he’s gone.”
Breyer, a former Harvard law professor, was considered the most moderate of the court’s three-person progressive bloc (outnumbered by six justices on the other side), though he also was the sharpest critic of the death penalty, which he thinks is unconstitutional.
Two hallmarks of Breyer, Waxman says, are his appreciation of pragmatism and his respect for precedent, or stare decisis: “Of everyone who has served on the court during his tenure, he’s been perhaps the one most focused on the broad, real-world implications of the court’s possible dispositions and rationales.
“His respect for the principle of stare decisis is deep and sincere,” Waxman notes. “In the current environment — in which stare decisis seems at a low ebb — his fealty to the importance of stability in the law stands out.”
Drawing on his legal and academic scholarship, Breyer has understood the value sometimes of regulation to address issues not well suited for the courts. This is in contrast to most of court’s Republicans, who are hostile to the administrative state.
Breyer’s replacement is a highly regarded court of appeals judge, Ketanji Brown Jackson. She likely will vote with the progressives, but it will take time for anyone to acquire Breyer’s personal touch inside the court.
A glaring deficiency of the current court is the lack of anyone with real world political experience: There are eight appellate court judges and a former dean of the Harvard Law School (Elena Kagan).The last justice who had faced voters was Sandra Day O’Connor, who retired 16 years ago.
Breyer may have come the closest, going back to his days as a chief counsel of the Senate Judicary Committee. “He learned first-hand from Sen. Kennedy,” recalls Feinberg: “work with the other side, give credit to others, be transparent, your word is your bond.”
The road Breyer took to the judiciary underscores those attributes. He was nominated in late 1980 for a seat on the Court of Appeals, but unexpectedly, Republicans won the White House and won a majority in the Senate on election day; therefore, the Republicans would control that judicial seat.
But Sen. Kennedy went to Sen. Strom Thurmond (R-S.C.), who was to be the Judiciary Committee chairman, to see if Breyer could be confirmed in a lame duck session. Thurmond and his staff had worked closely with and had respect for Breyer. Thurmond agreed, and Breyer was approved 80 to 10.
A little over a decade later, he was confirmed for the Supreme Court.
That couldn’t happen today.
Al Hunt is the former executive editor of Bloomberg News. He previously served as reporter, bureau chief and Washington editor for The Wall Street Journal. For almost a quarter century he wrote a column on politics for The Wall Street Journal, then The International New York Times and Bloomberg View. He hosts Politics War Room with James Carville. Follow him on Twitter @AlHuntDC.