Stephen Breyer, Supreme Court Justice, has an air of an absent-minded professor. His wife once joked in court about how he had directions in his pocket to prevent him from getting lost. To try and get answers to difficult questions, he concocts absurd hypothetical questions, often frustrating lawyers who have limited time.
Breyer’s image is not a mask of his sharp intellect, sunny disposition, or relentlessly pragmatic approach. He often searches for a middle ground, or grasps for an outcome that he can accept on a more conservative court.
Multiple sources informed The Associated Press that Breyer, 83 years old, is planning to retire. However, it’s almost certain not before the court ends its work in early Summer.
The court will then have rendered its verdict regarding abortion rights. This could include possibly overturning the nationwide right for abortion that Roe v. Wade first declared in 1973. It has been reaffirmed every since, including in many opinions Breyer wrote.
His most significant opinion was at the end June 2016 court term. Breyer was part of the majority that overturned Texas’ abortion clinic regulations. They provided “few, or none, health benefits for women” while making it more difficult to get an abortion.
Breyer’s votes often placed him to the right of center on an ever more conservative court. However, he saw the gray in situations his colleagues to his left and right preferred to call black or white.
This was evident more than ever on June 27, 2005. Breyer was the only one to find a 6-foot (1.8-meter), granite monument outside of the Texas Capitol acceptable. He also found framed copies in Kentucky courts in violation of the Constitution.
Breyer was sometimes a substitute for Justice Antonin Scalia in Fourth Amendment and law enforcement cases. Scalia, who died February 2016, voted for the court’s liberals.
This was when Breyer lost the majority vote to keep Maryland’s law that allowed police in Maryland to seize DNA from those who were arrested for serious offenses without a warrant. The sample could be submitted to the federal database by authorities to determine if the suspect is wanted for unrelated offenses.
Breyer was born with the ability to stand by authority even when his liberal peers did not. Breyer, an Eagle Scout, believed in the power of government and that people can work together to solve problems. Breyer liked to mention that he was an aide to Democratic Senator Edward M. Kennedy in Massachusetts and worked daily with his counterpart, Republican Sen. Strom Thurmond in South Carolina. Breyer stated that their bosses had always told them to try and work things out.
This same attitude did not always translate to the high court, especially after Justice Sandra Day O’Connor retired. A former state lawmaker, who was skilled in political compromise, was the first woman to serve on the Supreme Court. Breyer was open about his regret for O’Connor’s loss, which was made public by Breyer. O’Connor’s seat was taken by the conservative Justice Samuel Alito.
Breyer wrote a passionate dissent to a decision that invalidated public schools integration plans in June 2007, after the Alito had completed his first term as a justice. Breyer stated that it was rare that so many have changed so rapidly in a conservative five-member majority. He also noted that his dissenting opinion was twice as long than any that he had written over the course of 13 years at the court. Breyer was not known to be so pessimistic, as he was worried about his chances of being more in disobedience in the new era of Chief Justice John Roberts.
Breyer began to sing a more optimistic, but still realistic tune two months later. His faith in the rule and law was reinforced by his setbacks in cases regarding abortion, education and pay discrimination. Breyer stated that he can objectively see it and think of the ways he would have won. However, he also said that he believes in the rule of law. Breyer spoke at the American Bar Association meeting, San Francisco. “I am not going to be part of the majority every day. It’s a shame, because that’s how I would like to be. This is called the rule of law.
His argument that the court should not be viewed as politicians dressed in robes was based on the rule of law. He continues to make this point despite increasing support from opinion polls that show that the court’s work does not reflect his political views.
Breyer’s sharpest dissents were in ideologically divided decisions. He accused the majority of threatening the court’s reputation as a non-political court. Breyer wrote in Bush v. Gore that the court’s decision on the outcome of 2000’s presidential election was “highly controversial” and “runs the chance of undermining public confidence in the court…we do risk a selfinflicted wound.” The choice of a president is “of fundamental national importance.” However, this importance is not legal but political.
Breyer, after 21 years of service on the court, concluded in 2015 that it was “highly probable” that the death penalty would be unconstitutional. Justice Ruth Bader Ginsburg was the only other person to vote against his dissent.
He was a justice who spanned two periods of court history, the William Rehnquist years as well as the Roberts era. Sometimes he seemed to be overshadowed sometimes by other members of the court’s liberal wings, possibly because he was less senior than Justices John Paul Stevens or Ginsburg.
Breyer, like Ginsburg is Jewish. Elena Kagan was one of the three Jewish justices who joined the court in 2010. They were joined by six Catholics and no Protestants when Elena Kagan joined in 2010. Breyer is a frequent speaker in public, both nationally and internationally, about his Judaism as well as other topics.
He is fluent in French and was able to deliver addresses in French, including his induction as a foreign member in 2013 of France’s Academie Des Sciences Morales et Politiques, one of five academies within the Institut de France. At the request of justice, Breyer’s comments were occasionally distributed in French by the court’s press office.