The Volokh Conspiracy

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Supreme Court

What Difference Would a Justice Breyer Retirement Make?

Replacing the Court's most pro-government justice with a young progressive might make a bigger difference than expected.


The Supreme Court's October 2020 term is in the books, and there is no word on whether Justice Stephen Breyer will retire in order to ensure that President Biden names his replacement. Justice Breyer has hired the full complement of clerks for the coming term, and it appears he wants to have one more year as the senior-most liberal on the Court. If the Court is going to be split 6-3, Breyer may be thinking, he might as well be the voice of the three.

Most of those urging Justice Breyer to retired focus on the long term balance of the Court. Breyer should retire now, they argue, so as to ensure that his seat is filled by a Democratic president with a Democratic Senate. This would keep a liberal seat in liberal hands well into the future by replacing a justice in his 80s with one in her 40s or 50s. Those trying to pressure Breyer to retire also worry about what would happen were the Senate to fall back into Republican hands.

Replacing Justice Breyer with a Democratic appointee would maintain the Court's current balance on many high-profile issues, such as race, abortion, religion and even property rights. But I think it is a mistake to assume that a younger, liberal justice would replicate Justice Breyer's jurisprudence and voting pattern across the board. In at least one area—criminal justice—I suspect that a new liberal justice would differ significantly from Justice Breyer.

Throughout his time on the Court, Justice Breyer has been a notably pro-government justice. This has meant support for government regulation, but it has also meant more sympathy for police officers and prosecutors than the typical liberal justice. While Justice Breyer has turned against the death penalty, his pragmatism has also made him more open to government arguments that the rights of suspects and defendants need to be balanced against practical considerations. When the Court splits along formalist-pragmatist lines over criminal procedure, Breyer usually sides with the pragmatists.

A younger liberal justice would likely be more skeptical of government, and law enforcement in particular, than Justice Breyer has been. In a sense, you could say a Breyer replacement would likely be a bit more libertarian. Some of the difference would likely be due to a greater sensitivity to the racial implications of deferring to government power, but some of it would also be generational. As I've noted before, we are already seeing hints of a generational split on criminal justice among the conservative justices, as in Van Buren, and I suspect we will see a similar divergence between Justice Breyer and a younger liberal replacement, if and when he eventually leaves the Court.