Breyer's Departure Could Make the Supreme Court More Conservative

Progressives are pushing the 82-year-old justice to clear the way for a more liberal replacement

Supreme Court justice Stephen Breyer / Getty Images
June 14, 2021

The recent left-wing push for Justice Stephen Breyer to retire in favor of a younger liberal justice is likely to make the Supreme Court more conservative, at least on the margins.

Advocacy groups and liberal law professors are practically muscling the 82-year-old Clinton appointee off the bench, with memories of the late Ruth Bader Ginsburg fresh in mind.  The liberal judicial group Demand Justice mounted a billboard that read, "Breyer, retire. It's time for a Black woman Supreme Court justice," onto a truck that circled the Supreme Court in April.

With a right-leaning majority in place for the foreseeable future, it's easy to see why liberals want a young progressive stalwart on the bench. But Breyer's unique judicial approach makes him an effective emissary to his conservative colleagues, helping the left salvage victory from the brink of defeat in cases big and small. It's unclear whether his eventual successor will be as effective at building consensus or turning broad questions into narrow ones.

Breyer is not an activist fomenting social revolution through the courts. He is a judicial pragmatist who tries to harmonize the law with reasonable real-world outcomes. He will consider what Congress was up to in a given piece of legislation and how competing interpretations will play out on the ground and then craft a decision that aligns Congress's purpose and sensible results for all relevant stakeholders. This technocratic mode of judging sometimes presents something appealing for a conservative justice.

Liberals have time and again benefited from this approach. One such example is a workaday case from the 2016 term, City of Miami v. Bank of America, which involved a lawsuit by the city against the bank for predatory lending practices. Miami alleged that Bank of America intentionally targeted minority borrowers for risky home loans. The city claimed the high rates of foreclosure that followed eroded the tax base and forced municipal officials to expend additional resources on policing and code enforcement.

It was for the Court to decide whether the city's lawsuit could proceed under the Fair Housing Act. The conservative justices were dubious, inclined to toss the case. Liberals feared the Court would shut the door to such lawsuits, which other cities were replicating in courthouses across the nation.

The vote was 5 to 3, with Chief Justice John Roberts joining the liberals to sustain Miami's lawsuit. Justice Breyer delivered the majority opinion. While the Court let the case go forward, it cautioned that the city must prove the bank's actions have a direct connection to the urban rot it decries.

It is not enough to show the bank's practices were one remote cause among many. Setting such a low bar would "risk massive and complex damages litigation," Breyer wrote. And putting banks on the hook for every bad consequence in the housing market, which is deeply "interconnected with economic and social life," he added, goes beyond what Congress meant to do in the Fair Housing Act. In short, his careful, consequentialist approach was enough to shake loose a decisive fifth vote from a right-leaning colleague.

Breyer has likewise been a force for practicality and moderation in the fractious religious display cases. He wrote an influential solo opinion in a 1995 case, Van Orden v. Perry, in which the Court turned back a constitutional challenge to a granite statue of the Ten Commandments on the grounds of the Texas statehouse.

Breyer argued that the statue, even with its religious underpinnings, served a broadly secular purpose because it was erected by a community group, included civic features, and sits in a monument park, which is a nonreligious setting. Of special importance for future cases, Breyer noted that no legal challenge had emerged to the statue over its 40-year history until the instant dispute. The passage of time, he suggested, mattered for the analysis.

Cites to Breyer's opinion appear throughout the lower courts in the years that followed. It was especially important to a 2018 Supreme Court dispute about a 40-foot war memorial cross erected on government land in suburban Maryland in the 1920s to honor the local World War I dead.

Religious conservatives believed the Peace Cross case an ideal vehicle for a sweeping statement about the Constitution's religion clauses. Some hoped the Court would declare that "offended observers" have no basis for challenging religious monuments in the first place. Others believed the Court would explicitly scrap a '70s-era test used to identify unlawful religious entanglements with the government. Liberals were cool to both possible outcomes.

Justice Samuel Alito wrote the Court's opinion upholding the Peace Cross. The bottom-line outcome was 7-2. Following Breyer's lead from Van Orden, the decision said that time confers a presumption of constitutionality on religious memorials that is important when a case features a monument erected in the distant past. The decision, though a partial victory for the legal right, was also something of a disappointment in that the Court's Breyerian opinion didn’t go as far as they had hoped.

A committed judicial liberal might find fault in these decisions—some have argued they are self-defeating—but in these and other cases Breyer shows a real talent for steering internal deliberations away from more extreme results. None of this is to suggest that Breyer is an unprincipled dealer. Rather, it's to suggest that he may yet play a historic final act, and it's not clear a liberal should prefer a new justice, who'd be finding his or her bearings, to Breyer with Roe on the line.