Breyer: A pragmatic approach in search of common ground


Supreme Court Justice Stephen Breyer looks like an absent-minded professor, once joking in court that his wife had put instructions in his pocket to keep him from getting lost. He concocts wacky hypothetical questions in an attempt to get answers to tough questions, often to the frustration of lawyers who have little time to make their case.

But if Breyer cultivates such an image, it doesn’t mask a razor-sharp intellect, a sunny disposition or a relentlessly pragmatic approach to law that often pushes him to seek common ground or seize an outcome he can live with. more and more. conservative court.

Breyer, 83, plans to retire, multiple sources told The Associated Press, but certainly not before the court completes its proceedings in early summer.

By then, the court will have delivered its verdict on abortion rights, possibly including overturning the nation’s abortion rights that the court first announced in Roe v. Wade in 1973 and has reaffirmed since, including in several opinions written by Breyer.

Her most important opinion came at the end of the court’s term in June 2016. Breyer was in the majority to strike down Texas regulations on abortion clinics because they offered “little or no health benefits for women.” while making it harder to get an abortion.

Although Breyer’s votes generally put him left of center on increasingly conservative ground, he frequently saw gray in situations his colleagues to his right and left preferred to portray as black or white.

Never was that clearer than on June 27, 2005. In two cases involving displays of the Ten Commandments on public property, Breyer was the only one among his colleagues to find a 6-foot (1.8-meter) granite monument outside the Texas Capitol acceptable and framed copies in two Kentucky courthouses in violation of the Constitution.

In Fourth Amendment cases and law enforcement cases, Breyer would sometimes switch places with Justice Antonin Scalia and join the other conservatives while Scalia, who died in February 2016, voted with the court’s liberals.

That was the breakdown in 2013, when Breyer won the majority to enforce a Maryland law that allowed police to seize warrantless DNA from people arrested for serious crimes. Authorities could then submit that sample to a federal database to see if a suspect was wanted for unrelated crimes.

His willingness to side with authority when some of his Liberal colleagues did not was part of his makeup. An Eagle Scout, Breyer believed in government and working together to solve problems. He liked to point out that as an aide to Democratic Senator Edward M. Kennedy of Massachusetts, he worked daily with his counterpart on Republican Senator Strom Thurmond’s team of South Carolina. The constant message from their bosses, Breyer said, was to work things out.

This same attitude has not always carried over to the High Court, especially after the retirement of Justice Sandra Day O’Connor. The first woman on the Supreme Court was a former state legislator who practiced the art of political compromise. Breyer made no secret that he was missing O’Connor, whose seat was filled by the more conservative judge Samuel Alito.

In June 2007, at the end of Alito’s first full term as a judge, Breyer issued a long and impassioned dissent against a ruling that invalidated public school integration plans. “It’s not often that so little has changed so quickly,” Breyer said of a conservative five-justice majority, noting that his dissenting opinion was more than twice as long as the one he wrote in 13 years in the field. It was a rare public display of pessimism for Breyer, who feared he would be increasingly dissenting in a new era under Chief Justice John Roberts.

Two months later, Breyer was whistling a happier, though still realistic, tune. Setbacks in abortion, wage discrimination against women, and education have underscored his faith in the rule of law. “When I look at it objectively, I think I would have liked to win, but I also think it’s not a bad system,” Breyer said at the American Bar Association meeting in his hometown of San Francis. “I’m not going to be in the majority all the time. How I would like to be, but that’s the system. This is called the rule of law.

The rule of law was central to his argument that the public should not view the court as politicians in robes, which he continues to speak about even as opinion polls find growing support for the idea that the court work is political.

Breyer’s sharpest dissents occurred in ideologically split decisions and accused the majority of risking the court’s apolitical reputation. In Bush v. Gore, when the court ruled on the outcome of the 2000 presidential election, Breyer wrote that the decision “risked undermining public confidence in the court itself…we risk a self-inflicted injury”. The choice of a president “is of fundamental national importance. But this importance is political, not legal.

In 2015, Breyer concluded after 21 years in court that the death penalty was “very likely” to be unconstitutional. His dissent drew only one other vote, that of Justice Ruth Bader Ginsburg.

Justice straddled two eras of the court, the William Rehnquist years and the Roberts era. He sometimes seemed overshadowed by others on the liberal wing of the court, perhaps because he had less seniority than Justices John Paul Stevens and Ginsburg.

Like Ginsburg, Breyer is Jewish. When Elena Kagan joined the court in 2010, those three Jewish judges sat on the court with six Catholics and, for the first time in US history, no Protestants. Breyer speaks about his Judaism and many other topics in frequent public addresses, both in the United States and abroad.

He speaks French well enough to deliver speeches in the language, including his induction in 2013 as a foreign member of the Academy of Moral and Political Sciences of France, one of the five academies of the Institut de France. The court’s press office occasionally distributed the texts of Breyer’s remarks in French, at the express request of the court.


Sherman reported from Bradenton Beach, Florida.


Comments are closed.