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One word sums up Breyer's judicial philosophy

Opinion by Jeffrey Toobin, CNN

Updated: Wed, 26 Jan 2022 19:34:00 GMT

Source: CNN

Editor's Note: Jeffrey Toobin is chief legal analyst for CNN and the author of "The Nine" and "The Oath." The opinions expressed in this commentary are his own. View more opinion on CNN.

To understand the kind of Supreme Court justice that Stephen Breyer became, it helps to understand how he became a judge.

In the 1970s, Breyer took a leave from his professorship at Harvard Law School to work as counsel to Sen. Ted Kennedy of Massachusetts on the Judiciary Committee. It was an unusually productive period, and Breyer played a key role in measures deregulating the airline, trucking and railroad industries. The issues generated a lot of bipartisan agreement, because liberals liked the downward pressure on prices for consumers, and conservatives supported the removal of constraints on businesses. (The policies worked, more or less.)

Late in Jimmy Carter's presidency, after his defeat by Ronald Reagan in the 1980 election, he nominated Breyer for a seat on the First Circuit Court of Appeals. Republicans could easily have buried the nomination and allowed a president of their party to fill the important seat. But on December 9, 1980, the Senate confirmed Breyer by an 80-10 vote. Of course, this kind of collegiality and bipartisanship in the contemporary Senate is inconceivable.

In other words, Breyer came of age when the Senate, and the whole federal government, was a great deal more functional than it is today. The jurisprudence of some Supreme Court justices can be summed up in a single, favorite word. For Anthony Kennedy, it was the majestic (and vague) "dignity." For Breyer, it's "workable." He was forever searching for the bipartisan solutions to society's problems. Breyer believed in compromise and competence. He thought reasonable people could always make progress if they worked together in good faith.

It was Breyer's misfortune, though, to live in an ideological age. More to the point, he was mostly liberal on a mostly conservative court. In the big cases since former President Bill Clinton appointed him to the Court in 1994, he was often on the losing side, as in Bush v. Gore, which awarded the 2000 election to George W. Bush; Citizens United v. Federal Election Commission, which hastened the deregulation of political campaign fundraising in 2010 and Shelby County v. Holder, which gutted the Voting Rights Act in 2013.

The great liberal victories of Breyer's era, like the decision striking down some of the Bush administration's policies in Guantanamo Bay in 2008 or guaranteeing the right to same-sex marriage in 2015, were usually written by Kennedy, not Breyer.

When Breyer came to the court, he was mostly a technocrat -- a scholar of antitrust and administrative law. But over time he developed a distinct approach to constitutional law, which was characterized by his pragmatism and moderation.

For example, he dissented in 2008, when the court held for the first time, in District of Columbia v. Heller, that the Second Amendment offers some protection to individuals to own handguns. In that case, Justices Antonin Scalia and John Paul Stevens dueled over the intent of the Framers of the Constitution. Breyer, in contrast, wrote a dissenting opinion arguing that the "District's regulation, which focuses upon the presence of handguns in high-crime urban areas, represents a permissible legislative response to a serious, indeed life-threatening, problem." In typical fashion, Breyer thought the court should not interfere with a workable solution to a serious problem.

Breyer's careful, rhetorically cautious manner did command a majority in several important cases protecting a woman's right to choose abortion. He corralled the vote of Justice Sandra Day O'Connor (a close friend and ally) in Stenberg v. Carhart, a 2000 case which struck down a so-called partial birth abortion law in Nebraska. Likewise, in June Medical Services v. Russo, Breyer won Chief Justice John Roberts' vote in a 2020 case invalidating Louisiana's burdensome regulations on abortion clinics. Of course, this aspect of Breyer's legacy is at great and immediate risk with the current, more conservative court.

Breyer is known as a generous, friendly colleague, who never spoke harshly, on or off the bench, about his fellow justices. In oral arguments, he was famous for his windy, and frequently bewildering, hypothetical questions. ("No animals in the park doesn't necessarily apply to a pet oyster, OK?" he once said.)

Married into a distinguished British family -- his wife Joanna Breyer is a renowned child psychologist -- the justice enjoys the refined life of a trans-Atlantic intellectual. He expounds on Marcel Proust and currently serves on the jury that selects the Pritzker prize, the Nobel for architects. He also believes that American judges have much to learn from the laws of other nations.

It's possible to see in Breyer a throwback to a different age at the Supreme Court and in American life. It's true that the court has never been a gentle place, and ideology has always mattered to the presidents who made the nominations and the justices who served. But the current court is closer than ever to a straight-up legislative body, where Democrats and Republicans have predictable fights with predictable results.

And like the Senate where Breyer used to work, the court now has less room for compromise and comity. That's a loss for the country, and so is Stephen Breyer's departure from the Supreme Court.


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