The Volokh Conspiracy

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Pre-Writing Justice Breyer's Obituary

It is a surreal experience to talk to a reporter who is pre-writing a Supreme Court Justice's obituary.


On April 9, 2010, Justice Stevens announced his retirement. And on April 30, 2009, Justice Souter announced his retirement. At this point, it is safe to say that the reports of Justice Breyer's retirement are greatly exaggerated. He's not stepping down–this year, at least. This timing has not been not lost on Erwin Chemerinsky and other prominent progressives. They are imploring Justice Breyer to avoid RBG's mistake, and step down ASAP. I suspect these moves will inevitably backfire. There is a constant drumbeat that Justice Breyer is no longer needed, and a younger person can do the job just as well, if not better. (I suspect the White House is dangling KBJ, Breyer's former clerk, the same way Kavanaugh and Kethledge were used as Kennedy bait). Well, Justice Breyer will prove them wrong–for some period of time, at least. Eventually, all good things must come to an end. All men are mortal.

I recently had a surreal experience. A reporter asked to interview me. She was pre-writing Justice Breyer's obituary. She wanted to have an updated package ready to go once he passed. The rule were strict. The reporter instructed me to only speak of Justice Breyer in the past tense. I had to talk about his legacy without regard to what he still may accomplish. I had to anticipate how people would react if he died with a divided White House and Senate. And so on.

I've long held Justice Breyer in a very high regard. (Here, I will use the present tense). He is the most moderate Democratic appointment in a generation. His obsession with democracy tempers almost all aspects of his jurisprudence. His rulings on affirmative action, the Free Exercise Clause, the Establishment Clause, and the Separation of Powers, always reflect an attempt to achieve balance. He brings the Court to the middle in ways that are often invisible to the public.

Indeed, I think Justice Breyer has quietly pulled the right flank of the Court to the center. I often give Justice Kagan a lot of credit here, but Justice Breyer is an effective negotiating partner. Justice Breyer was probably responsible for brokering the Chief's saving construction in NFIB–the most significant act of moderation in decades. If Justice Breyer were to be replaced by someone far to his left, that moderation may vanish. It is unclear if KBJ could pull Roberts and Kavanaugh to the center effectively. Replacing Justice Breyer with a more progressive member could yield an even-more conservative court. Cases that went 5-4 squishy-middle will now go 6-3 hard-right. Justice Kagan cannot do everything on her own.

From 1994 through 2005, the Court stayed remarkably stable. Justice Breyer was forever the Junior Justice. Now he is the oldest Justice. And we have seen significant turnover. Since 2005, seven new members have been added to the court. We've had three new appointees in the last four years. I would appreciate a summer without a confirmation hearing.