Breyer’s Influence Hits Its Peak As Progressives Push Him To Retire

The justice could announce his retirement when the Court adjourns for the summer

Kevin Daley • June 30, 2021 5:00 am

Justice Stephen Breyer’s influence on the Supreme Court is hitting its apex just as many on the left are clamoring for him to step down in favor of a younger, more progressive successor.

Breyer, 82, has been a powerful force for consensus this term, delivering the majority opinion in three major cases that commanded lopsided majorities. It remains to be seen whether his banner run is the first part of a historic final act, or the swan song to a 26-year tenure that could end once the Court adjourns for the summer, when outgoing justices usually announce their retirement.

“It’s supremely ironic that Justice Breyer is being pushed to retire just as he’s reaching the apogee of his influence,” said Ilya Shapiro, director of the Robert A. Levy Center for Constitutional Studies at the Cato Institute. “He’s never had the high profile of many colleagues—he’s typically the justice the least number of people can name—but this term he’s emerged not just as the ‘leader of the opposition’ but as someone who’s joined with Chief Justice Roberts to craft grand coalitions and compromises.”

Though he has always been an effective emissary between competing wings of the Court, this heightened profile is new for Breyer, who had a near-record 11-year run as the junior justice. He has mostly been an understated presence serving alongside the biggest judicial personalities of modern history. Yet at the twilight of his career, Breyer’s measured and technocratic judicial approach is welcome on a Court which in the last year has run a gauntlet of confirmations, COVID appeals, long-shot challenges to the presidential election, and political attacks on its integrity.

Breyer handed down one of the most consequential decisions of his tenure on June 17, when he led a seven-justice majority that dismissed a third constitutional challenge to the Affordable Care Act on technical grounds. The ruling is likely the bookend to a decade of political struggle over the law and solidifies its position as a permanent fixture of the health care system.

The opinion concluded that the plaintiffs failed to show a direct injury that could be the basis for their lawsuit. It drew votes from colleagues across the ideological spectrum, including Justice Clarence Thomas, twice a dissenter in cases upholding the Affordable Care Act. The carefully crafted decision avoided issues that in the past have split the conservatives from the liberals or the conservatives among themselves.

Breyer also delivered the Court’s first statement about student speech rights in over a decade. Though the case involved an amusing set of facts—a cheerleader using profanity on Snapchat in reference to her cheer squad—the subject is a serious one that could hound the justices for years to come. The Court’s student speech precedents do not anticipate a world in which off-hours speech on social media, like bullying or harassment, can dominate the academic environment. And some school authorities have proved willing to compel or regulate speech in service of new ideas about race and sexuality.

Anxious about the complexities, Breyer urged the Court not to draw a bright line rule during oral arguments in April. His eight-justice majority opinion instead set guideposts for future cases, aiming to balance free speech with safety and order.

And in April, Breyer led a 6-2 Court that sided with Google in an $8 billion intellectual property dispute billed as the copyright case of the decade. Breyer’s opinion said Google’s use of a copyrighted programming language without a license fell within the fair-use exception to copyright rules.

As the senior justice in the majority, Chief Justice John Roberts assigned all three opinions to Breyer, a clear sign Roberts banks on Breyer to deliver modest opinions that generate buy-in from much of the Court. He is a reliable collaborator in Roberts’s push for consensus outcomes.

Breyer is also assigning majority opinions for the first time. Opinions are assigned by either the chief justice or the associate justice in the majority with the most tenure. Breyer appears to have assigned his first opinion this term in Van Buren v. U.S., an important if low-visibility case about the scope of a federal anti-hacking law. He assigned the decision to his newest colleague, Justice Amy Coney Barrett.

Despite his growing influence and a docket heavy with politically salient cases, the leftwing campaign to push Breyer off the Court is continuing unabated, even reaching the halls of Congress. Some lawmakers have been more tactful than others. Freshman Rep. Mondaire Jones (D., N.Y.) told NPR that the pressure on Breyer will only intensify if he doesn’t step down this summer.

“I think it is logical to assume that if Justice Breyer decides for some reason not to retire at the end of this term, there will be a chorus of Democrats calling on him to do the right thing and be a good steward of our democracy,” Jones told NPR.

Should Breyer decide to step down, an announcement is likely this week.