The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

I am really going to miss Justice Breyer

His opinion in Oracle v. Google was so joyful. You can tell how much he relished writing this technical decision.


I know very little about copyright law. I have no idea whether Justice Breyer or Justice Thomas is correct about the fair use doctrine. But I absolutely loved reading Justice Breyer's majority opinion in Google v. Oracle. It was pure, unadulterated joy. Well, joy for Justice Breyer at least. I felt such bliss when reading it. He spent page after page explaining how complicated types of computer code work. He included appendixes to illustrate the structure of the software. He wound up intricate hypothetical questions, like he would in oral argument. One sentence began "Consider a comprehensive, albeit farfetched, analogy…" He quoted from one of the world's shortest stories in English and Spanish: "When he awoke, the dinosaur was still there." Everything about the case was Breyer at his peak. In the past, RBG may have been assigned a technical IP case. But now, Breyer got the cushy assignment.

Reading this opinion, I couldn't but think how much I'll miss Justice Breyer. He has grown on me over the years. His votes on affirmative action, the Establishment Clause, and the separation of powers are idiosyncratic. He has a moderate streak that pervades all aspects of his jurisprudence (except abortion–the smoke detector provision of HB2 had to be severable).

After reading Google, I can't help but wonder if Breyer has second thoughts about retiring. He is obviously up to the job, and is only now receiving cushy assignments. For the first time in his career, Breyer can actually assign some majority opinions. RBG was always his senior. Remember, he was the junior justice for more than a decade! Justice O'Connor regretted stepping down too early. So did Justice Stevens. Not Justice Souter. He got out of Dodge as quick as he could. As we speak, Justice Breyer is feeling the pressure of the entire progressive establishment on his shoulders. Will he shrug?