Justice Breyer’s retirement leaves the Supreme Court wounded

Justice Breyer’s retirement is a wise political decision, but will be a loss for an increasingly polarized court

Connor McNamara

President Biden officially announced the retirement of Supreme Court Justice Stephen G. Breyer on Thursday, Jan. 27. Breyer has served on the court for 28 years since being appointed in 1994 by Bill Clinton, and sat on the U.S. Court of Appeals for 20 years before that. He’s been an integral part of this country’s judicial history longer than most people on this campus have been alive. And despite that, he’s apparently the least well-known member of the court. In a CNN survey, only 21% of Americans knew enough about him to offer an opinion.  

This stings a little bit, because he’s also my favorite justice. If you’ve ever listened to livestreams of Supreme Court oral arguments, you’ll know why. Breyer is by far the most entertaining, asking fanciful hypotheticals and interrogating attorneys of both sides with equal vigor. 

This isn’t just personal preference. A 2005 study by Boston University law professor Jay D. Wexler revealed that besides Antonin Scalia, Breyer produced by far the most notations of laughter in the court transcripts. Since Scalia’s death in 2016, Breyer has consistently ranked first.  

But Breyer didn’t simply add humor to the bench. He is a passionate legal scholar, and one of the foremost philosophical minds on the court. In his writing and frequent debates with his fellow justice Antonin Scalia, Breyer constructed one of the most complete alternatives to originalist constitutional interpretation. Originalists like Scalia claim that the Constitution doesn’t evolve; what the framers wrote at the time is what they meant. Breyer argues that the framers instead wrote the Constitution to be flexible, so that the court could decide how to best fulfill the mandate of democracy within the context of the modern era. 

Even with this passion for the philosophy of law, Bryer remains pragmatic, and is one of the last moderate bastions in the Supreme Court. While holding strong views, Breyer still consistently seeks to work with his conservative colleagues and ensure a true solution is reached. In 2005, for example, he cast the deciding vote in two cases which ultimately allowed the Ten Commandments to be displayed on a monument within the Texas capitol grounds, but not in Kentucky courthouses. But even while working with both sides, Breyer is always conscious of how his decisions might affect the people. He has constantly upheld the right to abortion and free speech, defended the affordable care act, and has questioned the constitutionality of the death penalty.  

Breyer’s attitude may seem old fashioned in this era of polarization, but losing one of the last remaining pragmatists on the Supreme Court will leave a deep wound in the judicial system. His choice to retire is politically the right one – Democrats cannot afford to lose another seat on the court – and with Biden’s pledge to nominate a Black woman, the new Justice will represent a truly valuable step forward for representation and diversity. Yet, the retirement of Breyer still leaves me deeply sad. There seems little hope that Biden’s nominee will hold to any sort of moderate approach to judicial decision making in a time when that is so unpopular. The Supreme Court appears to be on an unstoppable march towards total polarization, and Breyer’s absence will push us ever closer to the cliff’s edge.