Did Justice Breyer Go IDGAF?

Justice Breyer may have abandoned attempts to moderate, and resigned himself to dissent.


On Thursday, the Supreme Court released two opinions: Pereida v. Wilkinson and United States Fish and Wildlife Serv. v. Sierra Club, Inc. The latter case was Justice Barrett's first majority opinion. The vote in Sierra Club was 7-2. Justice Breyer, joined by Justice Sotomayor, dissented on fairly technical grounds. Justice Breyer agreed with the majority that the case should be remanded back to the lower court. Indeed, Justice Breyer left open the possibility that he would "agree with the majority" opinion. His disagreement was hyper-technical

There is something of a tradition that a Justice's first decision should be unanimous. Justice Kavanaugh's first majority opinion, Henry Schein Inc. v. Archer & White Sales Inc. was unanimous. Same for Justice Gorsuch.

I suspect that if there was a unanimous majority opinion to be had from Justice Barrett's first sitting, the Chief would have assigned that case. Perhaps there were no majority opinions from Barrett's first sitting. Or maybe Sierra Club started off as a majority opinion, but Breyer and Sotomayor fractured off. Still, given this narrow disagreement, I was surprised that Justice Breyer would bother to dissent on Justice Barrett's first majority opinion. He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.

Now Justice Kagan joined the majority opinion. I have no clue about her views on the substance. But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. Maybe Justice Kagan gave Justice Barrett a join as a courtesy. If so, how do we explain the vote of Justice Breyer, who historically has used his votes strategically to form coalitions?

It's possible that Justice Breyer has seen the writing on the walls. The conservatives has no interest in working with him to build consensus opinions. The Chief can count to 5 without Breyer's help. And Justice Breyer may have already told President Biden he plans to retire. At this point, Justice Breyer may be IDGAF. He's checked out. Call it SCOTUS senioritis. Indeed, originally Justice Breyer's dissent was not respectful. His opinion originally ended with "For these reasons, I dissent." But on March 5 at 9:49 a.m., the Court revised the opinion. Now, Breyer's dissent was respectful.

The fact that Breyer made this change suggests something is afoot with respect to collegiality.

Mike Dorf offers a similar explanation:

Perhaps I'm wrong. Maybe Breyer and Kagan were voting their legal consciences 100% all the time, and it only looks like they were sometimes trimming in order to maintain their credibility and influence with the least conservative of their conservative colleagues. But from where I sit, it sure does look like that was what they were doing–at least sometimes.

Now we come to my hypothesis about Breyer: He has largely given up on moderating his best all-things-considered judgment in the hope of moderating the Court overall. On a Court in which the best one can hope to do in an ideologically high-stakes case is swing the Chief to convert a 6-3 defeat into a 5-4 defeat, the game isn't worth the candle.

Whatever the explanation, maybe Justice Kagan joined in the hope of wooing Justice Barrett. Interestingly, Kagan was the last new Justice to write a first majority opinion in a non-unanimous case; Scalia dissented; perhaps it still stings. If Justice Kagan is indeed trying to charm Justice Barrett in the hope of moderating her votes in some later cases, I wish her luck in the campaign, but I am not very confident that she will succeed.

It is always risky to read so much into subtle changes in the Court's decisions. But these two dissents on Thursday felt off.

Update: I wrote a followup post that casts doubt on whether this tradition exists. And Justice Kagan wrote about Justice Scalia's dissent from her inaugural opinion in The Essential Scalia:

But the Nino test makes my work better even when—or especially when—I wind up disagreeing. I discovered this effect early on, in my very first opinion. The Court's tradition is that a justice's maiden majority be unanimous. But Nino thought that silly: what was the point, he asked me (as he pretended to seek my permission for his solo dissent), of a convention that shied away from, rather than delighted in, the clash of ideas? So I was forced to respond to Nino's incisive views on the car-ownership deduction in bankruptcy law and, in that way, to make my own argument tighter and more convincing.

There was no sting.

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  1. “…the sting when Justice Scalia dissented from her first opinion.”

    srsly? I am certain that Kagan, and Barrett, can handle it.

    1. I agree. You don’t end up on the Supreme Court by being a delicate flower, stung by criticism.

      All of these people- whatever their ideologies- have thick skins and know that criticism and collegial disagreement is part of the job.

      1. They get pretty damned petulant at times for having such thick skins. They are human. Being a Supreme Court justice doesn’t suddenly give them the patience to rise above it all, any more than that government paycheck imbues them with wisdom.

  2. The inserting “with respect” after the fact feels … really weird to me. I mean justices do leave that off all the time when they feel strongly about a case … did Breyer just forget? Because otherwise I am not sure what happened.

    Like there is nothing wrong with leaving it off if he actually feels strongly about it but it was a highly technical issue and there was no reason to feel strongly over it, which I definitely found strange reading it but now … is he saying it’s not actually that important? Is he saying he was too worked up and got too angry? Did he forget? Like its just weird.

    1. I forget the psychobabble term for it, but if you think certain words are in a document, you will actually see them there when you read it — and not be able to notice that they aren’t until someone else points that out to you.

      It’s not “forgetting” but thinking it was there, wanting it there, and realizing that it wasn’t.

    2. I could also imagine him simply not being aware of the import we all read into whether “respectfully” is or is not present with an “I dissent”. It’d be a little strange, but Breyer’s said stranger things before.

      (I’m not the only one who, when Obergefell came out, first ran to the dissents to check whether any omitted “respectfully”. None did — although Scalia did not end his with an “I dissent” at all, and I suspect it was because he couldn’t honestly include “respectfully”, yet probably also thought it was better for society to not make that particular fuss visible.)

  3. I think Fulton and <i?Brnovich may tell us more about where Breyer stands. During oral arguments he expressed sympathy for the petitioners but wants to see the cases decided on narrow grounds. We shall soon find out whether there are 5 votes for a broad holding that might lead Breyer not to give an F.

    1. I suspect he is more than a little annoyed at Fulton … he pressed the court for years in overruling Employment Division and then suddenly everyone switched positions on the matter. Like he is right to be mad that you can’t it both ways … but it applys to him too.

  4. Is this serious? No justice should ever temper their opinion just to give somebody a unanimous decision. They owe us their true opinions, if they can’t give those than they should resign.

    1. Nah, consensus and compromise are important. If every justice just gave their “True” opinion, every case would be a 9-way split with 9 different opinions.

      1. That’s what concurring opinions are for. Forget all the dictum; if you can’t get 5 justices to agree on the core holding, then it shouldn’t be binding precedent.

    2. I agree: There’s nothing in their oaths of office about congeniality. They should uphold the Constitution first, and the law, second, though the Heavens should fall, and if they can’t do that, they should resign.

    3. There is room to “temper” opinions, as long as doing so does not require signing on to something that is actively wrong. It is also possible that one might think a case could equally be resolved on either of two grounds…yet one ground is more unifying than the other, so you run with that one. (This could explain any number of punts the Court has executed over the years.)

  5. If the Supreme Court is acting like a bunch of Junior High Schoolers, we’re even worse off than I thought. I hope it’s the commentators that are screwed up, not the Court.

  6. I have a hunch Breyer is going to retire at the end of the term, so maybe he’s not too concerned about the feelings of the newest members.

  7. Maybe he sees the writing on the wall that he is going to retire and his last year on the court be consigned to a minority in any real case. Seems petty to do what he did, but that is liberalism for you. I remember when Scalia dissented (and you stated above) and the media lambasted for a few news cycles over it. Seems like the outrage machine is pretty quiet this time around. Wonder why….

    Anyway, I think this suggests he is done. RGB set the precedent for the remaining liberal justices. They barely have the Senate right now and, if you look at it from a historic and strategical standpoint, the Dems probably won’t hold the Senate in 2022. With a straight down the middle split Biden is going to need to find a consensus nominee and get them through in 9-12 months assuming he holds on till June. That isn’t a ton of time if one nominee sputters out from scandal or something similar.

    Breyer was always a weak jurist and will be known as such. There are no cases pending where he can secure any kind of legacy. His best shot is to author some noteworthy dissents his fellow liberals in academia will put into book and take the sweet tenured professor job waiting for him at some posh university.

    1. “Biden is going to need to find a consensus nominee”

      Not really, Sotomayor got 68 votes, Kagen got 65, Biden just has to pick someone that hasn’t tweeted any death threats at any democratic senators and he will be fine.

      1. That was before the impeachments.

        At best, Barrack O’Biden will get the second impeachment vote, i.e Romney, Collins, etc.

      2. That was, obviously, before 4 years of no holds barred attacks on a Republican President and basically all his nominees. Not just voting against them, smearing them.

        Gorsuch was confirmed 54-45, with 3 Democratic votes.

        Barrett was confirmed 52-48, with no Democratic votes.

        After that you expect a Democratic nominee to get 15-20 votes? Not much chance of that.

        1. I hate to agree with Brett about that, but is unlikely that we won’t see a SCOTUS nominee get 60 votes for quite a while

      3. Yeah libs spent the last four years destroying any “norms” we used to have in their endless “GET TRUMP!!!!!” campaign. Republicans (and sometimes Democrats to be fair) would have bipartisan moments. That isn’t going to happen in the future. Not after the endless parade of bad faith actions by the left.

        1. really your blaming democrats for that. Not the president who kept blowing up agreements on the 11th hour. Or the party that was saying democrats were cannibal child pedophiles. Not to mention the shit ton of norms republicans broke to get 3 supreme court justices in. Refused to follow senatorial courtesy. I’m pretty sure no matter who Biden nominates they are gonna get confirmed. Especially since Republicans nominated Kavanaugh.

  8. If there is a tradition to not dissent even though you do dissent on a Justice’s first opinion, that isn’t a good tradition.

    Deciding cases is not about the justices, it is about the law. Dissents are invaluable, as they reveal possible weaknesses in the reasoning of the majority and perhaps suggest limitations to how far that reasoning should be extended.

  9. Sotomayor is a Diabetic, and she may be planning to retire as well.

    Trump thought he would be replacing her, what might he have known that isn’t public?

    1. Sotomayor is still young, and she has strong views, and she will not quickly relinquish the ability to see them written into the Court’s decisions. She’s not going anywhere any time soon, not unless something new arises on the health front.

      Trump’s utterances on this deserve exactly the same credit you would give to the crazy uncle at Thanksgiving who rants about conspiracy theories.

  10. In regards to Kagan

    She’s worked in administration before, both as dean of Harvard and Solicitor General. She understands how draft documents…even final draft documents work, get circulated around, and how they are actually drafts. It would be chilling to honest decision making if every “final draft” document was opened up to FOIA requests. She also has a more expansive view of federal government.

    Breyer doesn’t have this experience. He’s from the outside, looking in. His “draft of a draft” bit doesn’t really fit reality.

  11. “He could have swallowed his disagreement, and given his new colleague a warm gesture on a fairly non-consequential case. Instead, Justice Breyer dissented.”

    I don’t think Barrett minds jumping into the deep end of the pool right away.

  12. While it is a nice tradition to be unanimous in a justice’s first opinion, it is implausible to an extreme that any justice would expect his colleagues to vote against their judicial oath to do so.

    Ideally, yes — the first opinion would be unanimous. But if there is no case that can be unanimous, well, you have to vote your conscience, and no one should hold a grudge against you for it. Then you write an apologetic note to the justice to make up for it. (I faintly remember hearing of some “recent
    justice that actually did this — possibly O’Connor? — but I may be misremembering. And I lack the time to try to look up whether such did happen.)

  13. “But I imagine that Justice Kagan may remember the sting when Justice Scalia dissented from her first opinion. ”

    Didn’t Scalia and Kagan actually develop a decent friendship soon after she joined the court?

    1. Yes, and Scalia was enthusiastic about Kagan being chosen for the Court

      1. Scalia was also very close with Ginsburg. The professional isn’t always personal.

        However, there’s no way people like Kavanaugh are ever going to every forget, no less forgive. He’s only human.

  14. It may be that Justice Breyer has become more willing to write dissents, and less likely to moderate his views in the hopes of cobbling together a majority, given the new make-up of the court. But I would hardly describe that as “IDGAF.” Such a label seems to be gratuitously insulting Justice Breyer.

    Perhaps Professor Blackman, seeing Justice Breyer’s reduced influence on the court, no longer sees a need to talk about him with the respect a law professor and member of the Supreme Court bar traditionally accords a sitting Supreme Court Justice, even one Professor Blackman may often disagree with. Perhaps Professor Blackman mow thinks auch respect doesn’t gain him anything.

    That is, perhaps it is Professor Blackman who now DGSF. Perhapa he can call Justice Breyer names – even use the F-word – with impunity.

  15. “Indeed, originally Justice Breyer’s dissent was not respectful.”
    No. You might fairly say that it omitted explicit self-identification as respectful, but that does not mean it wasn’t respectful.

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