‘It could matter significantly whether or not the new justice shares Breyer’s overall sensibility’
Sanford V. Levinson is a professor of government at the University of Texas Law School.
Only in the present overheated political atmosphere would Justice Stephen Breyer be categorized as a “liberal.” I am tempted instead to compare him to Judge Richard Posner, in that both are essentially technocrats. Both share the quality of being pragmatists looking for sensible legal solutions. Breyer, like Oliver Wendell Holmes, Posner’s great hero, likely believes that “experience” and a knowledge of empirical realities are more important than legal logic-chopping, whether from the right or the left. However, the confirmation hearings are unlikely to provide much clarity on whether Breyer’s successor shares this pragmatism.
President Joe Biden’s pick will be a thoroughly predictable vote on matters like abortion and affirmative action, assuming the Supreme Court has any such cases to hear after the conclusion of this and the next term! So for those issues, it really doesn’t matter that Breyer is about to be replaced, because one can assume that the voting records of the former and the new justice will overlap considerably in the cases most likely to be featured on the front page of the New York Times or Washington Post. But those cases are in fact a minority of the court’s docket. Statutory interpretation, often of administrative law, not only takes up more of the docket, but it also may well affect more people throughout the country. So it could matter significantly whether or not the new justice shares Breyer’s overall sensibility, pragmatism and passion for empirical data as being relevant to legal analysis.
But I would be surprised if that becomes a focus of the hearings: I doubt the Democratic senators are interested in highlighting the pragmatist critique of legal formalism, while the Republicans will no doubt posture about originalism, which Breyer basically has no use for.
‘No men in the minority’
Kimberly Wehle is a professor of law at the University of Baltimore School of Law.
This court has become politicized. That much is clear. The rejection of President Barack Obama’s constitutional prerogative to nominate Merrick Garland along with the last two controversial confirmations did it — not to mention how the new court is diluting the Constitution itself by refusing to respect Roe as binding precedent in Dobbs. The replacement of Justice Stephen Breyer will not change votes. It’s still 6-3; apples are replacing apples. But now that it’s a political court, what would it mean to have all the progressives be women — two of them women of color? No men in the minority. Zero. Imagine a decision on affirmative action: all women dissenting. Abortion: all women dissenting. Immigration rights: all women dissenting. On and on. In the era of #BLM and #MeToo, this will feel different to the country. In the history of the court, only five of the 115 justices have been women. (The fact that Justice Amy Coney Barrett is in the majority doesn’t mean much, because many people don’t perceive her rushed confirmation as legitimate.)
It is not off the table that one day the court will no longer be treated as legitimate by the populace. That its rulings will be ignored. It doesn’t have its own law enforcement apparatus or army, after all. Marbury v. Madison held that the court decides what the Constitution means. That itself was a power grab, appearing nowhere in the Constitution’s text. But it’s one we have lived with since 1803 because we buy into the validity and legitimacy of the court itself. If this unelected 6-3 majority continues to ram down controversial social policy decisions against the will of the voters, the court could pay the ultimate price. With Breyer’s retirement leading to a solid female minority, that trajectory will look only starker and harsher. Political forces might put pressure on the Justices to remember they are not royalty but public servants. They are mere stewards of the people, not their bosses.
In a rosy view of the future, this pick might just existentially save the court itself — even though it won’t change the current voting imbalance. It might force the court to pull back on its transparent ideological rulings, as the optics will be troubling with no white male in the minority. That could prevent it from losing all credibility, which the progressives have been fearing in dissent for some time now.
‘Breyer’s departure could lead to differences in style and focus’
William Araiza is a professor at Brooklyn Law School.
Whoever she turns out to be, President Joe Biden’s choice to replace Justice Stephen Breyer won’t alter the Supreme Court’s fundamental ideological split. However, Breyer’s departure could lead to differences in style and focus.
Breyer was, above all, a pragmatist: His opinions on matters ranging from federalism to race reflect searches for workable solutions rather than strict adherence to overarching jurisprudential theories. His departure could silence that approach. Breyer’s resignation also comes at a time when the court is on the verge of radically remaking administrative law — the critically important law governing administrative agencies. As an administrative law scholar, Breyer was a leader on those questions. His departure will deprive the court of an important voice.
More substantively, Breyer’s departure could change the vote counts and potentially the results in some cases. He was more willing than his fellow liberals to allow governments to display religious items, such as Ten Commandments monuments. A new justice more insistent on maintaining the church-state divide might vote against the government in cases where Breyer might have accommodated it, even if that change likely won’t prove decisive. But a new justice might have more impact in criminal procedure cases, where Breyer also voted for the government more often than his liberal colleagues. If libertarian-leaning Justice Neil Gorsuch can be persuaded to join a now-solid liberal bloc, that would make four votes, putting them within striking distance of winning at least a few cases defendants might have lost had Breyer remained on the court. That possibility would increase if Biden nominates someone with a public defender background, such as Judge Ketanji Brown Jackson.
