The news that Justice Stephen Breyer is retiring from the Supreme Court galvanized the legal and political worlds this week. With so much riding on every SCOTUS seat, it’s impossible to ignore how big the consequences might be.
But what will really change? Breyer is a moderate liberal justice, to be replaced by a moderate liberal president with the assent of a fully Democratic-controlled Congress. The ideological divide on the Supreme Court will surely remain 6-3. So what, if anything, will be different with a new face in Breyer’s place? What could be different?
POLITICO Magazine reached out to a select group of legal and court experts to answer the question of why Breyer’s departure could matter — what’s the biggest difference his replacement could make, or, alternatively, is this the rare nomination the country doesn’t have to explode over?
Several highlighted the importance of the Supreme Court’s would-be first Black woman justice. Others pointed out that Breyer was a notable pragmatist on the bench, and his successor may not broker as many compromises. And some experts drew comparisons to Justice John Marshall Harlan of more than a century ago to emphasize that even justices in the minority have the power to shape future decisions with their dissents. Here’s what they all had to say.
‘This appointment will transform the face of the court — literally’
Renee Knake Jefferson is the co-author of Shortlisted: Women in the Shadows of the Supreme Court and the Doherty Chair in Legal Ethics at the University of Houston.
The promise of the nation’s first Black woman on the United States Supreme Court is a dramatic, historic change. While the ideological split of 6-3 may endure, this appointment will transform the face of the court — literally. And it is long overdue. Black women have been shortlisted — but ultimately shortchanged — for more than 40 years. When President Ronald Reagan selected Sandra Day O’Connor to be the first female justice in 1981, his shortlist named a handful of other highly qualified women. That list included Amalya Kearse, the first Black woman to serve on the U.S. Court of Appeals for the Second Circuit, appointed by Jimmy Carter. Imagine if Reagan had placed Kearse on the Supreme Court instead of one of his subsequent nominees — Justices Antonin Scalia, Anthony Kennedy or William Rehnquist. She was later considered for other Supreme Court seats by presidents from both parties, including George H.W. Bush and Bill Clinton, but she remains on the Second Circuit today in senior status.
Adding a Black, female justice to the Supreme Court infuses the court with institutional legitimacy by shaping it to more accurately reflect the public it serves. She will inspire the next generation of Black girls to become lawyers and judges and to reach for the ultimate pinnacle in their chosen professions. That it has taken four decades since women were permitted to join the court to include a Black woman reflects the additional challenges and burdens faced by all women of color in professional life. The time has come, finally, and it is a moment to be celebrated.
‘Who will be the new Roberts whisperer?’
Josh Blackman is a constitutional law professor at the South Texas College of Law Houston, and the author of An Introduction to Constitutional Law: 100 Supreme Court Cases Everyone Should Know.
Who will be the new Roberts whisperer?
Short of expanding the Supreme Court, the only way that progressives can hope to prevail in controversial cases is through compromises. Somehow, the three progressives need to find common ground with at least two conservatives to form a majority. Justices Elena Kagan and Stephen Breyer are very skilled at this stratagem. They are willing to sacrifice their liberal principles to reach a moderate outcome. In the 2012 Obamacare case, for example, Kagan and Breyer reportedly reached a deal with Chief Justice John Roberts that allowed the health care law to survive. By contrast, Justice Sonia Sotomayor is more likely to stand for her principles and write a vicious dissent.
Rather than appointing another progressive icon, President Joe Biden will likely look for a jurist willing to work hand-in-hand with their colleagues to temper the court’s conservatism. Perversely for Biden, a more-liberal nominee will make the court more conservative. A more middle-of-the-road justice can keep the court closer to the center. For example, next term the Supreme Court will decide the constitutionality of Harvard’s affirmative action policy. In 2003, Breyer struck a middle position on affirmative action that helped curry the vote of moderate Justice Sandra Day O’Connor. Breyer’s replacement, whoever she is, will be expected to broker the same sort of compromise.
‘It’s possible that there will be even fewer moderate outcomes’
John Culhane is a professor of law and co-director of the Family Health Law & Policy Institute at Widener University Delaware Law School.
In the short term, the confirmation of Justice Stephen Breyer’s replacement won’t matter — at least as far as the court’s actual decisions. In fact, given the retiring justice’s reputation for compromise, it’s possible that there will be even fewer moderate outcomes from the court with his successor in place. But the significance of the impending selection will grow in the coming decades. Whoever is selected will undoubtedly be significantly younger than Breyer, in accordance with a recent trend by both parties to select justices whom the majority party expects to shape the law for decades to come. Justice Amy Coney Barrett, for instance, is only in her late forties. For lifetime appointments, age matters — a lot.
Beyond actuarial considerations, though, this retirement will be monumental. President Joe Biden has pledged to nominate a Black woman to fill the slot, and he will certainly do so. She will be the first African American woman on the court, and, not insignificantly, she will form the third side of a fresh, all-female, liberal triangle, along with Justices Elena Kagan and Sonia Sotomayor (who, as a Latina, is the first woman of color to sit on the bench in the nation’s history). This matters. When the five male justices and their one female conservative colleague, Barrett, issue rulings that diminish female agency, the public won’t fail to notice the near-total gender split in the results. Optics matter, especially for a court already suffering from its lowest approval rating yet. The angry dissents that are likely to become a hallmark of this new triumvirate will give voice to the frustrations of the majority of Americans — who already find their lives unrepresented by the majority’s Olympian detachment from real-world facts and lives.
‘A set of experiences Breyer will not have had’
Anna O. Law is an associate professor of political science and the Herbert Kurz Chair of Constitutional Rights at CUNY Brooklyn College.
President Joe Biden is playing the long game with his federal judicial appointments. One of his campaign promises was that he would appoint the first Black woman justice. When he does so, the difference between her and Justice Stephen Breyer would not be so much on the dimension of political ideology, but on their work and life experiences that they bring to judging cases. It’s not that the nation’s first Black woman justice would represent the views of all Black people or even all Black women as if they have a monolithic set of preferences. But it is reasonable to believe that a Black woman will have had a set of life experiences common to other Black people and women because of her phenotypical and gender markers, a set of experiences Breyer will not have had. She will force the other justices to see and address the implications that they otherwise may not see or wish to ignore. The new appointee could broaden the vision and comprehension of how the Supreme Court’s rulings affect all Americans.
Although the new justice might be writing often in dissent, she could still make an impact on the court by writing for history. Currently, a block of six conservatives represents the majority on the Supreme Court — but nothing lasts forever, even in an institution with lifetime appointments. The new justice, along with Justices Elena Kagan and Sonia Sotomayor, can use dissenting opinions to lay out novel lines of legal argumentation and strategy for when the day comes that the numerical advantage narrows between the liberal and conservative appointees via changes in the court’s personnel. In 1896, in the infamous racial desegregation case Plessy v. Ferguson saying “separate but equal” was not a constitutional violation, Justice John Marshall Harlan was the lone dissenter. His dissent took the court majority to task for its flimsy claim that segregation did not constitute racial discrimination. Fifty-eight years later, in Brown v. Board of Education, with many intervening cases and the momentous Civil Rights movement in between, Harlan’s minority position was finally vindicated in a 9-0 decision stating that racial segregation was no longer constitutionally sustainable. The impact of this new justice on the Supreme Court might not be evident in the present moment, but even dissenters can be influential. One hopes we will not have to wait 58 years for her impact to be evident.
‘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.
‘The idea that she will be in a position to “build consensus” seems laughable’
Aziz Huq is a professor at the University of Chicago Law School and an author, most recently ofThe Collapse of Constitutional Remedies.
Sen. Patrick Leahy (D-Vt.) predicted in 1994 that Justice Stephen Breyer “will have the ability to build consensus.” Indeed, said Leahy, that’s “probably the most important thing he can do.”
Whatever else might be said about how the nomination of the next liberal justice unfolds, the idea that she (or, much less likely, he) will be in a position to “build consensus” seems laughable. The six-justice conservative majority seems likely to pursue the political priorities of the Republican coalition: reregulating abortion; deregulating guns and big money in politics; advancing religious conservatives’ right to discriminate against LGBTQ persons; disarming the federal regulatory state; andarming the coercive state to use violence that falls most heavily on Black and Hispanic people. Scant evidence of an appetite for compromise, or any respect for political adversaries, can be discerned in the majority’s work.
What then will a new Democratic appointee need? It is tempting to say “a strong stomach,” and leave it at that. But more than that, Democrats should entertain the thought that what they really need is a William Rehnquist or a Antonin Scalia: Someone with the stamina, nous and fortitude to play a long game; to call out the Supreme Court, and not compromise, when it falls short of its own professed ideals; and to point the way to something more worthy of veneration. That wouldn’t be Breyer. But it would be a decent way to build on his legacy.
‘The historic importance … should not be minimized’
Rakim Brooks is the president of Alliance for Justice, a progressive advocacy organization focused on the courts.
President Joe Biden may have run as a moderate during the Democratic primary, but he has governed as the most progressive president since Lyndon B. Johnson. And, when it comes to the judiciary, he has been the most progressive president since Jimmy Carter. His more than 40 nominees to important appellate and district court seats have included eminently qualified civil rights lawyers, voting rights champions, public defenders and labor attorneys, and that includes several Black women who will be leading contenders for this nomination.
Though conservatives will remain in the majority, it is worth remembering that Biden’s choice could serve for three decades or more. A lot can change in that time. We have also seen throughout history that a single justice can make a significant difference, even in the minority. Justice John Marshall Harlan, who was often called “The Great Dissenter” during his time on the Supreme Court, left an impact that would shape the future of American jurisprudence for the better for generations. Justice Thurgood Marshall was often in dissent during his time on the court, but he gifted the nation a constitutional north star on matters of vital democratic importance by reminding us where we had come from. So, it is true that we will continue to have an increasingly radical 6-3 conservative majority on the Supreme Court. And it will still be imperative that we expand the court to save our democracy. But the historic importance of adding the nation’s first Black woman justice to the Supreme Court — a nominee who will be dedicated to protecting human rights and equal justice under the law — should not be minimized. It’s a sign of incredible progress, and she will play a part in determining the course of “herstory.”
‘A stronger liberal voice … will give renewed energy to a progressive vision that will be waiting for its eventual return to majority status’
Howard Gillman is the chancellor of the University of California, Irvine, and an award-winning scholar and teacher with an expertise in the American Constitution and the Supreme Court.
The new justice will be a more reliable liberal vote than Justice Stephen Breyer, who cast the smallest percentage of liberal votes among the Democratic appointees with whom he served. Maybe more importantly, the next justice will have an opportunity to articulate a clear liberal or progressive vision alongside Justices Sonia Sotomayor and Elena Kagan, in sharp contrast to Breyer’s style, which too often was ponderous and idiosyncratic as he attempted to cultivate a reputation for fair-minded balance. A stronger liberal voice will not change outcomes in the short-run but will give renewed energy to a progressive vision that will be waiting for its eventual return to majority status, in the same vein as the conservative justices who wrote in dissent in the 1970s, ’80s and ’90s.
‘It reaffirms our belief in the great experiment Breyer was known to refer to’
Ediberto Roman is a professor at Florida International University College of Law.
Some may believe little will change given the Supreme Court’s current breakdown of six conservatives and three liberals. Such a perspective, however, misses a crucial historical point: the consequences and importance of appointing the first African American female justice.
President Joe Biden reaffirmed his commitment to nominate a Black woman. The significance of this moment was subtly echoed and endorsed by Justice Stephen Breyer when he chose to quote from President Lincoln’s Gettysburg Address. While some insensitive and tone-deaf souls may consider Biden’s decision as identity politics for political pandering purposes. Such criticism is clueless and merely a reflection of anachronistic, privileged mindsets. In the era of the Black Lives Matter movement, where racial disparities in our justice system are widely recognized, nominating the first Black woman to the high court is not only historic, it’s long overdue.
As a person of color myself, witnessing the first African American woman on the high court not only reflects the beauty and power of our legal, political and philosophical system, it reaffirms our belief in the great experiment Breyer was known to refer to.
‘Every justice is sometimes a swing vote’
Joshua Matz and Roberta Kaplan are partners at Kaplan Hecker & Fink LLP.
The nomination of a new justice to the Supreme Court is always a historic event. For better or worse, those nine men and women have a unique power to give voice — and legal force — to competing views of the nation and its constitution. The ideas they embrace, the concerns they raise, and the causes they lift up are endowed with special solicitude. And of course, each new justice can change the rhythm and dynamics of the court in important ways.
In these respects, it matters a great deal who replaces Justice Stephen Breyer, especially in this fraught moment, as an immodest conservative majority on the court seems poised to drastically revise and upend huge swaths of constitutional law. Realistically, so long as the conservative supermajority endures, President Joe Biden’s nominee is unlikely to change the outcome in most of the court’s high-profile cases.
But every justice is sometimes a swing vote. And this nominee will face fundamental choices about how to position herself: Will she stand firm in defense of principle and issue dissents to rouse the next generation? Will she seek compromise and moderation to build bridges with her colleagues? Are there issues where she breaks from the expectations of those who appoint her? These are not easy questions. And the answers that the new nominee reaches will have long-lasting implications for the court and the country.