The Breyer paradox

Count Justice Stephen Breyer among the well-intended. You may also count him among the last of the liberal justices to sit on the U.S. Supreme Court. The news that Breyer will step down from the court at the end of the current term sets the stage for a new era because the progressive base of the Democratic Party will not be satisfied with a new justice who is merely liberal.

Breyer is the quintessential representative of the American establishment, and his career has been stellar in achievement. He graduated from Stanford University and won a Marshall Scholarship, which took him to Oxford University in England. He returned to the United States and went to Harvard Law School. He then served as clerk for Supreme Court Justice Arthur Goldberg before joining the law faculty at Harvard, where he became an established expert in administrative law.

Breyer is Jewish, but his wife, Joanna, came from an Anglican family, and her father, John Hugh Hare, was a British lord, Viscount Blakenham. The Breyers’ daughter Chloe would become an Episcopal priest. In his own family, Breyer joined the American establishment to the British elite.

Breyer worked with Democratic Sen. Ted Kennedy and served on the Watergate prosecution staff. President Jimmy Carter then appointed him to the 1st U.S. Circuit Court of Appeals—often seen as a steppingstone to the Supreme Court. In 1994, President Bill Clinton appointed Breyer to the high court, where he immediately became part of its liberal wing.

Make no mistake, Breyer is a liberal jurist who stands in the liberal tradition that dominated the court over the last half of the 20th century. He is a committed pragmatist in jurisprudence. He believes that judges should decide cases largely based on what they see as the likely outcomes of a judgment and choose the one they think is the best. The judge, according to Breyer, should rationally and carefully trace expected results and outcomes and decide accordingly.

Breyer certainly does not dismiss the Constitution, but his approach is made clear when he once said that a judge should “look back and see if his decisions do fall into a consistent pattern so they’re consistent with the basic approach to the Constitution.” In other words, the judge is not actually bound by the text of the Constitution. Throughout his decades in the law, Breyer’s approach is consistent with the liberal belief in a “living Constitution” that is evolutionary and progressive and the role of the judge as an adjudicator of difficult questions.

His judicial philosophy stands in vivid contrast with the conservative approach of textualism, which begins with the text of the Constitution, not with any desired outcome. Justice Antonin Scalia was the epitome and prophet of textualism, and Breyer saw himself as the liberal alternative to Scalia.

Breyer’s commitment to pragmatism means that he sees the role of the judge as a solver of problems and a force for social good. The key issue here is that the judge becomes the center of the law, not the Constitution. Breyer is surely well-intentioned in his own mind, but that is the problem. His method means that his own vision of the good became his guiding principle.

On the issue of abortion, Breyer’s liberalism was consistently clear. In 2000, he wrote the majority opinion in Stenberg v. Carhart, striking down a ban on partial-birth abortion in Nebraska. He has ruled consistently against any limitation on abortion and clearly sees abortion rights as a part of the liberal unfolding of new “rights” as demanded in the name of social causes like feminism. It is historically significant that Breyer holds the seat previously held by Justice Harry Blackmun, author of the infamous Roe v. Wade decision. Constitutionalism has consequences, and Breyer’s own sense of the law has come with deadly consequences for the unborn. In other areas of the law, his method has a similar pattern.

Breyer’s retirement comes after months of hectoring and pressure from progressive activists and leaders in the Democratic Party. They demanded that he retire so that President Joe Biden could appoint a liberal successor while Democrats (barely) hold a majority in the U.S. Senate. They fear the midterm elections in November, and they are horrified by the example of the liberal standard-bearer, Justice Ruth Bader Ginsburg, who died in office, only to be replaced by conservative Justice Amy Coney Barrett.

But here is the truth: Another liberal justice is unlikely to succeed Justice Breyer. Given the radical swing to the left undertaken by President Biden and his fellow Democrats, we should expect future nominees from Democratic presidents to be even to the left of Stephen Breyer. The future will likely see a shift from liberal justices to more openly radical justices. Get ready for a political battle that will have consequences for decades to come.