Justice Breyer Retires, Leaving Warnings In His Wake

Breyer Respectfully, And Permanently, Dissents From The Court’s Rightward Sprint.
TPM Illustration/Getty Images

Justice Stephen Breyer will step down from the bench Thursday, departing from the Supreme Court as it lurches ever more dramatically to the right. 

He sent a letter to President Joe Biden Wednesday, making official his earlier announcement of intent to retire at the end of the Court’s term.

“It has been my great honor to participate as a judge in the effort to maintain our Constitution and the Rule of Law,” he wrote. 

Justice-in-waiting Ketanji Brown Jackson will be sworn in at noon just as Breyer vacates his seat, swearing a Constitutional Oath administered by Chief Justice John Roberts and a Judicial Oath administered by Breyer himself. 

Breyer is leaving the Court as it swings farther from his beliefs and philosophy, heralding an era where many of the hardest-won rights of the last century are under dire threat. In his final weeks as an associate justice, he was relegated to the dissent in some of the Court’s highest profile cases. 

He led the dissent in New York State Rifle & Pistol Association, Inc. v. Bruen, in which the conservative majority knocked down a 100-year-old New York gun licensing law that’ll make it easier for people to obtain concealed carry permits. That law had no historical analogue, claimed Justice Clarence Thomas for the majority, adding that government interest in the safety of its citizens is an insufficient basis upon which to maintain it. 

In his ever-polite manner, Breyer picks apart the ludicrousness of basing constitutional rights on what amounts to bad, or at least selective, history. 

“At best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd,” he writes. “At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue’ and make it nearly impossible to sustain common-sense regulations necessary to our Nation’s safety and security.”

He emphasizes the practical impossibility of such jurisprudence, fretting for lower courts that lack the Justices’ expansive staff and resources to stitch together such a historical tapestry. And at points, he just throws his hands up at the lunacy of it all. 

“How can we expect laws and cases that are over a century old to dictate the legality of regulations targeting ‘ghost guns’ constructed with the aid of a three-dimensional printer?” he asks incredulously. 

The dissent is his last big solo hurrah. In the other, final cases of the term, he plays an ensemble role. 

He joins together with his liberal peers, Justices Sonia Sotomayor and Elena Kagan, in dissenting from the landmark decision overturning the constitutional right to an abortion in Dobbs v. Jackson Women’s Health Organization

The dissent alternately seethes and rages, mourns and warns. 

“The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them,” the three write. “The majority thereby substitutes a rule by judges for the rule of law.”

He appears again dissenting in a significant case last week where the conservative majority takes a sledgehammer to the wall dividing church and state, declaring that taxpayer money in Maine meant to guarantee a free public school education must be available for use at religious schools too.

While the ruling may not have a dramatic immediate effect in Maine, Breyer took the position he’s been forced into more and more in recent months: harbinger of danger to come. 

“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion,’” he writes. “It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second.”

For this Court, it’s becoming a theme. 

Befitting his position as one of a small minority, Breyer’s final day triumphs were modest and quiet. 

He wrote for a unanimous Court majority in striking down a Washington workers compensation law, and for one siding with doctors who challenged their convictions for prescribing opioids. 

He wrote for the majority in a splintered case centered on a former Texas state trooper not being given a new job when he returned from military combat with war injuries. 

“Texas’ contrary view would permit States to thwart national military readiness,” Breyer writes. “We need not stray from the statute at hand to see the danger of this approach.”

For months, issuing warnings is all Breyer has been able to do. And all the while, he’s been criticized as too mild and comfortable with the corroding institution in which he serves, too invested in comity and respect to recognize the magnitude of the threat emanating from the rightwing justices sitting beside him.

Along with his liberal peers, and usually relegated to the ending pages of the Court’s opinions, he has, sometimes uncomfortably, tried to bend his polite and professorial manner to the dire task of warning the country about dangers to come. 

Now Jackson, his student and successor, will join the liberal women in doing that unhappy work.

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