U.S. Supreme Court

Chemerinsky: Justice Breyer is a model for all who sit on a judicial bench

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Erwin Chemerinsky. Photo by Jim Block.

In almost 28 years on the U.S. Supreme Court, Justice Stephen G. Breyer has been a moderate liberal on an increasingly conservative court. He has advocated interpreting statutes to achieve their purpose on a court that moved sharply away from that approach in favor of focusing on the plain language of laws. He has stressed looking at pragmatic real-world consequences on a bench that has become ever more ideological in its rulings. A former professor who specialized in administrative law, he has expressed the need for deference to the expertise of agencies at a time when more of the justices are openly hostile to the administrative state.

In some of the most ideologically divided areas of law—abortion, affirmative action, death penalty and gun regulation—Breyer has been consistently and forcefully liberal. But in other areas, most notably the Fourth Amendment and the religion clauses of the First Amendment, sometimes Breyer was with the conservatives, even as the decisive vote. And from a personal perspective, as a lawyer, Breyer was a joy to appear before.

The liberalism of Justice Breyer

If I had to pick a single Breyer opinion to praise, it would be his dissent, in 2007, in Parents Involved in Community Schools v. Seattle School District No. 1. The court, in a 5-4 decision with Chief Justice John G. Roberts Jr. authoring the majority opinion, held that public school systems could not use race as a factor in assigning students to schools to achieve diversity.

Breyer wrote a lengthy dissent joined by Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg. He described how American public schools are increasingly racially segregated and lamented that the court’s decision will have the effect of placing many effective desegregation plans in jeopardy. Breyer declared: “The last half century has witnessed great strides toward racial equality, but we have not yet realized the promise of Brown. To invalidate the plans under review is to threaten the promise of Brown. The plurality’s position, I fear, would break that promise. This is a decision that the court and the nation will come to regret.”

As I think of Breyer’s dissents, I also recall his forceful dissent in 2015 in Glossip v. Gross, where he argued the death penalty is likely unconstitutional. The court, 5-4, upheld lethal injections in carrying out capital punishment, but Breyer contended that the risks of executing innocent people and the great arbitrariness in the imposition of the death penalty warrant the court declaring it unconstitutional.

Another notable Breyer dissent, and one that reflects his pragmatic jurisprudence, was in District of Columbia v. Heller, in 2008. From 1791 until that decision, the Supreme Court never had struck down any law as violating the Second Amendment. In the handful of cases dealing with the Second Amendment, the court said it was a right to have guns for militia service. In Heller, though, the court ruled, 5-4, that the Second Amendment protects a right of individuals to have guns in their homes for the sake of security and struck down a District of Columbia law prohibiting ownership or possession of handguns.

Justice Antonin Scalia’s opinion for the court and Justice Stevens’ dissent both focused on the original meaning of the Second Amendment. Justice Breyer, though, wrote a dissent focusing on the “facts as a court must consider them [in] looking at the matter as of today” in terms firearm deaths and injuries.

One final example of Breyer’s liberalism is his consistent votes in favor of protecting reproductive freedom for women. Indeed, he wrote the majority opinion in some of the most recent Supreme Court decisions striking down state laws imposing restrictions on abortion: Stenberg v. Carhart (2000), Whole Woman’s Health v. Hellerstedt (2016), and June Medical Services v. Russo (2020).

Not always a liberal

There were notable areas where Breyer joined the conservatives rather than the other liberal justices. One of those places was the Fourth Amendment. In a number of cases, Breyer was the decisive vote in favor of the police. For example, in Maryland v. King (2013), Breyer was in the majority in a 5-4 decision—over the dissents of Justices Scalia, Ginsburg, Sonia Sotomayor and ELena Kagan—holding that police may take DNA from a suspect to see if it matches DNA from unsolved crimes in the police database. In Navarette v. California (2014), Breyer again was in the majority in a 5-4 decision over the dissents of the same four justices, holding that police may stop a car solely based on an anonymous tip of erratic driving. And in Utah v. Strieff (2016), he joined the four most conservative justices in a 5-3 ruling (this was the year Justice Scalia died) that evidence is admissible despite an illegal stop if police discover that there is an outstanding warrant for the person’s arrest.

Another area where Breyer sometimes was with the conservatives was in cases involving the religion clauses. For example, in Van Orden v. Perry (2005)—a case I argued and lost—Breyer concurred in the judgment and joined with Chief Justice William Rehnquist and Justices Scalia, Anthony Kennedy and Clarence Thomas in holding that the establishment clause was not violated by a large Ten Commandments monument that sits between the Texas State Capitol and the Texas Supreme Court.

More recently, in American Legion v. American Humanist Association (2019), Breyer voted with the majority in holding that a large cross at a busy intersection on public property did not violate the establishment clause. In Trinity Lutheran v. Comer (2017), Breyer also was in the majority in holding that Missouri infringed free exercise of religion in denying aid to religious schools for the surfacing of playgrounds when that same assistance was provided to public schools and secular private schools. In both of these cases, Justices Ginsburg and Sonia Sotomayor dissented.

A personal perspective

Many years ago, I was speaking at the 10th Circuit judicial conference and providing a review of Supreme Court’s decisions. I was stunned to see Justice Breyer sitting in a front row. I often have spoken at judicial conferences, but rarely have seen a justice attend the law professor’s description of the term. I had planned to sharply criticize the court’s inconsistent rulings in a particular area of law and the lack of needed guidance for lower courts. And even with Breyer there, I decided to go ahead with my remarks as planned. Breyer on hearing my criticism, demonstrably shrugged in a way that was visible to the audience.

A few years later, the court’s term ended on a Thursday, and my Supreme Court review for the 10th Circuit judicial conference was on Friday morning. Breyer brought me copies of the slip opinions from the Thursday decisions. It is the only time in my life that I had Supreme Court decisions hand-delivered to me by a justice.

On a number of other occasions I spoke at judicial conferences, and if Breyer was present, he always attended. After my talk, we always chatted, often about a place where I voiced disagreement with the court and one of his opinions. I vividly remember these conversations and the cases we talked about. Most of all, I so admired his intellectual engagement and eagerness to discuss the hard issues.

I argued many cases before the court with Justice Breyer on the bench. Like all advocates, I sometimes found his questions long and occasionally convoluted. But I always so appreciated that his questions expressed exactly what he was concerned about regarding my argument. I was grateful that he gave me the chance to address those concerns and inevitably his opinions reflected exactly what he raised during oral argument.

Justice Breyer, on the bench and in person, was always courteous to everyone. His opinions never resorted to the sarcasm and invective that some other justices have come to use. In this way, and so many others, he is a model for all who sit on a judicial bench.

See also:

ABAJournal.com: “Chemerinsky op-ed calls on Justice Breyer to retire now”

ABAJournal.com: “Can the nation endure? Breyer waxes philosophical in retirement press conference; Biden sets timetable”

ABAJournal.com: “Justice Breyer, Supreme Court’s oldest member, will retire, reports say”

ABAJournal.com: “These 2 judges are considered front-runners to replace Breyer; who else is getting mentioned?”

ABAJournal.com: “White House confirms potential Supreme Court nominee as the short list grows”

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of several books, including The Case Against the Supreme Court (Viking, 2014) and The Religion Clauses: The Case for Separating Church and State, written with Howard Gillman (Oxford University Press, 2020). His latest book is Presumed Guilty: How the Supreme Court Empowered the Police and Subverted Civil Rights (Liveright, 2021).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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