Assessing Justice Breyer’s Legacy

A trio of GW Law professors discussed the retiring justice’s time on the U.S. Supreme Court.

January 31, 2022

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Justice Stephen Breyer (r) participated in a virtual Constitution Day event in 2020, moderated by GW Law Dean Dayna Bowen Matthew and Associate Dean Alan Morrison. (Harrison Jones/GW Today)

By Greg Varner

Justice Stephen Breyer, who recently announced his impending retirement from the U.S. Supreme Court after almost three decades on the country’s highest court, has been an exemplary centrist, a consensus-building institutionalist and a rationalist, according to a trio of professors at GW Law.

Laura A. Dickinson, the Oswald Symister Colclough Research Professor of Law at the George Washington University, worked as a clerk to Breyer in the Supreme Court’s term of 1997-1998.

“Justice Breyer really believes in the court’s role in preserving the rule of law, and to some degree in the limited role of the court, and he’s had that view all along,” Dickinson said.

“I think his opinions reflect his view that government really can work on behalf of the people,” she added, “and his view that informed, fact-based, technocratic government is a good thing in society.”

Paul Schiff Berman, the Walter S. Cox Professor of Law, also praised Breyer’s rational approach.

“He believes in the ability of human beings and governments to act rationally, based on empirical evidence, to solve real problems to help people in the world,” Berman said.

Alan B. Morrison, the Lerner Family Associate Dean for Public Interest and Public Service Law, has been a personal friend of Breyer’s for more than 40 years. He, too, praised Breyer’s approach to his duties on the bench.

“He tried to do the job without any preconceived notions about where the law should be going, except he thought that the law should be a workable, fair concept,” Morrison said. “He was a pragmatist, open to compromise, which some people criticized him for. But in the end, he wanted to see that the law was workable, and that requires compromise. He tried to work with other justices to get some compromise middle position.”

On the specific subject of Breyer’s legacy, the professors were laudatory, with some expressing concern that his achievements might not be valued as highly as they should be, at least in the near term.

“I think we will remember him as a pragmatic voice for the possibility of good governance, and that we will really miss that voice,” Berman said.

It may be too soon, in any case, to discuss Breyer’s legacy.

“Legacies are hard to assess now, because they are the accumulation of what people will say about him down the road,” Morrison said.

But in contrast to the generally accepted view of Breyer as a liberal voice on the Supreme Court, the professors said he is actually a centrist who looks more liberal in comparison to some of his far-right colleagues.

“The court got more and more conservative around him,” Dickinson said, “so people often refer to Justice Breyer now as part of its liberal wing, but that’s really just in comparison to the very, very conservative justices currently in the majority.”

Noteworthy Cases

Asked to focus on a particularly notable or praiseworthy decision made by Breyer, the professors proposed various rulings.

“I would draw attention to his statements regarding the death penalty,” Dickinson said. “For example, in the dissent that he wrote in Glossip v. Gross, he provided a very important analysis of why he thinks the death penalty might be unconstitutional and called for a full briefing on whether the death penalty violates the Constitution. I think that’s a really important decision.”

There were other cases, Dickinson said, in which Breyer signaled his concern about the death penalty.

“He believed that the death penalty cannot be administered fairly,” she said, “because of unconscionably long delays and arbitrary application and unreliability, but he is in the minority on the court on this issue.”

Morrison pointed to two opinions of Breyer’s, the first being in Whole Woman’s Health v. Hellerstedt, a case out of Texas sparked by the burdensome requirements imposed on the delivery of abortion services (such as requiring abortion providers to have admitting privileges at a hospital).

In his ruling on this case, Morrison said, Breyer “tore the rationales apart. He just dug into the facts of the case and established beyond a doubt that there were no legitimate purposes at all behind this.”

The ruling was a textbook example of the kind of decisions that judges should be making, Morrison added, because of its adherence to the facts of the case and the way it examined the stated rationale for the contested law.

Morrison also praised Breyer’s dissent in response to two school integration cases, in 2007, originating in Seattle and Louisville schools.

“The majority knocked out two voluntary programs that were put in,” Morrison said, “to try to rebalance the segregated schools. Nobody shoved this down anybody’s throat, this was a consensus of both communities, and the court knocked them down and treated them as though they were imposed by some imperial authority. Breyer’s dissent in this case spelled out why he thought the majority misguided. It was a wonderful opinion, both passionate and analytical.”

Rather than highlighting a specific case, Berman praised Breyer’s style at oral argument.

“He was very distinctive at oral argument on the court,” Berman said, “because he always wanted to know more empirical data about how the various options before the court might play out in the real world. He pursued complicated, law school-like hypotheticals with the advocates to try to tease out the implications of a ruling in one direction or the other for future cases and future situations.”

The investigations Breyer made from the bench also played out in his chambers, Dickinson said, recalling the “extraordinary” experience she had working as his clerk.

“He ran chambers like a seminar,” she said. “He would bring all the clerks together to discuss each case, and he wanted to hear all different points of view. He would have the clerks argue against each other on different points that he would raise, and we would spend hours and hours discussing the cases with him. He always wanted to know more. He never stopped investigating and considering, and it made working for him a truly extraordinary experience.”